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<div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><blockquote><p>
<b>The Death Penalty: An American History</b><br /><br />
By Stuart Banner, Harvard University Press, 385 pages, $15.95</p>
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<b>The Contradictions of American Capital Punishment</b><br /><br />
By Franklin E. Zimring, Oxford University Press, 285 pages, $30.00
</p></blockquote>
<p>More than 3,700 people reside on death row, an average of 60 people are executed annually and, except for a brief period in the 1970s when executions were unconstitutional, capital punishment has been part of our legal system since the Colonial period. It has also been an enduring subject of debate. As Stuart Banner notes in his history of the death penalty, the ink began spilling long ago: "So much has been written and said on the subject of capital punishments," a Philadelphia newspaper observed in 1812, "that it looks almost like presumptive vanity to pursue the topic any further." </p>
<p>
Still, the pursuit continues, as does the practice of executions. Banner, a University of California, Los Angeles law professor, and Franklin Zimring, an eminent University of California, Berkeley criminologist and ardent opponent of the death penalty, have produced estimable new books on capital punishment. Banner's <i>The Death Penalty: An American History</i> is an accessible, balanced and reasonably comprehensive history of death-penalty practice and policy from the 17th century through the present. Zimring's <i>The Contradictions of American Capital Punishment</i> hones in on the cultural ideals that both challenge and sustain the death penalty.</p>
<p>
Not many people approach this issue agnostically, but, as Zimring notes, many are ambivalent about capital punishment and not well-versed in its history. Banner's book is a useful introduction to the American experience, partly because he treats the grisly matter of execution with unusual dispassion. Refraining from overt advocacy, he focuses on the methods and meanings of executions, from the somber, sometimes inept public hangings of the 1600s through the sanitized, relatively secret poisonings of the condemned today. </p>
<p>
In Colonial America, as in Europe, property crimes as well as crimes of violence were punishable by death. Moral lapses, such as adultery, were also liable to be classified as capital crimes, as were religious offenses, such as heresy or blasphemy. The proliferation of death penalties partly reflected the absence of imprisonment as an alternative sentence, as penitentiaries date back only to the late 18th century. But punishment practices themselves reflect dominant cultural ideals, and, Banner suggests, the harshness of the Colonial codes was rooted in a harsh religious worldview. The death penalty was a faith-based initiative. </p>
<p>
Executions were public religious rites, designed to instill terror and virtue in the general populace while encouraging the repentance of the condemned. Mercy was available through clemency or the imposition of lesser sentences, such as mock hangings, which required people to stand in public with ropes around their necks. But condemnation could be unremitting: Sometimes prisoners were sentenced to death and then dissection -- a fate regarded with particular terror by people who feared that the destruction of the body after death would preclude resurrection. From this perspective, the hubris of condemning someone to dissection is breathtaking; as Banner observes, the state was "exercising its power to deny the afterlife." </p>
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Hanging was the primary method of ending this life. A procession to the gallows was followed by a sermon and "gallows speeches" by prisoners who either insisted on their innocence (sometimes truthfully, no doubt) or confessed and sought forgiveness. Sometimes they tried doing both, Banner reports, by asserting variations of diminished-capacity defenses. Last-minute reprieves were available, so gallows speeches were apt to be desperately strategic. </p>
<p>
This was a highly discretionary system of justice. Trials were speedy and nonadversarial. (Considering the quality of our own indigent defense system, you might say the same of many capital cases today.) There were no formal appeals and no standards governing the issuance of clemency, although it was guided by "stable, unwritten conventions." In addition, "connections mattered," but as the political system became more democratic in the 19th century, public opinion began mattering, too.</p>
<p>
Elite opinion began reconsidering the death penalty in the early years of the republic, mainly in the North. (In the South, by law and practice, free blacks and slaves were subject to many more death sentences than whites.) Banner chronicles early 19th century death-penalty abolition debates, attributing the emergence of an abolition movement partly to changing ideas about crime and human nature: Throughout the 17th and much of the 18th centuries, the death penalty complemented a view of all human beings as "innately depraved" and entirely responsible for policing their own vices. "(A) criminal," Banner writes, "was someone who had failed to control a natural tendency that everyone shared." The Enlightenment introduced a competing view of the individual as a blank slate and crime as a disease or the product of a corrupting environment. Penitentiaries were built, and capital punishment for property crimes was gradually eliminated.</p>
<p>
Execution practices also changed drastically during the 19th century. Public hangings were gradually abolished, partly because the public enjoyed them too much. The large, celebratory execution crowds did not seem appropriately terrified and offended the sensibilities of the emerging middle class. Hangings were moved into prison yards, and later, when the electric chair and gas chamber replaced the gallows in the late 19th and early 20th centuries, executions were moved inside prison walls. Beginning in the 19th century, Banner observes, the trial, not the imposition of sentence, became a focal public event, and people began vicariously witnessing the spectacle of criminal justice through newspaper accounts, as they witness it today on cable television.</p>
<p>
Banner follows the history of capital punishment through to the present, focusing on the constitutionalization of the process, which has satisfied neither its supporters nor its opponents. He predicts that the future of capital punishment will be determined, as was its past, by prevailing ideas about free will and individual accountability. This seems a bit reductive: If religious or psychological explanations of crime determined our response to it, you'd expect the United States to follow the example of other Western nations in abolishing the death penalty. Instead, we share with Islamic fundamentalist regimes, whose cultures are so foreign to our own, an apparent belief in its justice and efficacy.</p>
<p>
Franklin Zimring explains why. His new book includes a sharp, sensitive discussion of the political and cultural forces shaping contemporary attitudes toward the death penalty, along with hard data about executions, a cogent explanation of the capital process and an account of successful efforts to abolish the death penalty in Europe. American support for capital punishment has always had its paradoxes: Mistrust of government, especially on the right, has long coexisted with faith that the criminal-justice bureaucracy applies the death penalty with relative infallibility. What Zimring characterizes as the public's "profoundly mixed feelings" about capital punishment have only been exacerbated recently by revelations of wrongful capital convictions, as the surveys he cites suggest. Today, according to a Gallup Poll, about 70 percent of Americans express support for the death penalty (compared with 80 percent in the mid-1990s). Support drops further when people are presented with an alternative sentence of life without parole. And many people who favor the death penalty do seem to wonder about the justice of it: A 2001 ABC/<i>Washington Post</i> Poll reported that while a majority of survey respondents agreed that the death penalty was fair because it prevents killers from killing again and provides "closure" to victims, a majority also agreed that the death penalty was unfair because it was inconsistently applied and sometimes imposed on the innocent. </p>
<p>
If these conflicts about capital punishment provide openings for abolitionists, they also complicate the challenge before them. Persistent majority support for the death penalty despite significant concerns about its fairness and fallibility suggests that American care deeply about preserving it. This distinguishes the United States from other Western nations that abolished capital punishment in the latter half of the 20th century, Zimring suggests. Generally, in western Europe, Australia and Canada, abolition was a top-down process, "engineered by governing elites at a time when public opinion still favored capital punishment for murder." But the political elitism of abolition did not spark popular outrage or a damaging backlash. Instead, after abolition, European nations adopted even stronger policies against the death penalty, declaring it a human-rights issue, not merely a matter of criminal-justice policy. Central European nations quickly abolished the death penalty after the fall of the Soviet Union, and, outside the United States, abolition is generally considered "an integral part of liberalization." </p>
<p>
Abolitionists have attributed the American attachment to capital punishment alternately to a history of violence and vigilantism, to an ethic of revenge and, of course, to racism. There may well be some truth in all of these speculations, especially the latter. It's hard to overstate the role that slavery and its aftermath have played in the administration of the death penalty, not to mention lynching; even today, as Zimring reports, the vast majority of executions in America occur in the South (89 percent in 2000). But Zimring rightly focuses on public concern for crime victims and the confusion of justice with therapy in explaining the intensity of American support for capital punishment. </p>
<p>
In the past 20 years, he observes, the purpose and even the process of capital cases were partially privatized -- transformed, in part, from public crime-control measures into efforts to provide personal, psychic compensation ("healing") to the victims' survivors. Empirical evidence that executions are indeed more helpful to victims than life sentences seems at least as scarce as evidence that the death penalty effectively controls crime. But, Zimring writes, "Closure is not important as a behavioral phenomenon; it is, instead, a belief system." Moreover, conceptualizing the death penalty as a "victim-service program" has greatly enhanced its legitimacy: The language of therapy softens what might otherwise be considered a desire for vengeance by presenting it as a quest for closure. It also cloaks an awesome exercise of government authority by training our attentions on the service executions supposedly provide, not on the power they represent. It maligns efforts to provide time-consuming due-process protections to the condemned as counter-therapeutic attacks on victims. Finally, rhetoric about victims' rights resonates with a cultural tradition of communally controlled punishment, which sometimes but not always devolves into vigilantism. </p>
<p>
Thus the therapeutic "culture of victimism" often derided by the right has played a central role in popularizing crime-control policies long favored by the right. Still, the victories of capital punishment advocates have been limited, like the progress made by abolitionists. While the death penalty remains in force, it is applied to only a tiny percentage of homicide cases. The Supreme Court and Congress have established often insurmountable roadblocks to capital appeals, even in cases in which guilt is greatly in question. But there seems to be growing uneasiness at the Court's center-right over the system's gross inequities. Consider Justice Sandra Day O'Connor's expressed concern about the quality of indigent defense. The Court's far-right wing, however, remains quite cavalier about such problems and the likelihood of wrongful convictions: Justice Antonin Scalia has even questioned whether executing the innocent would raise a constitutional claim. </p>
<p>
Of course, whether or not the Court decides wrongful executions are illegal, the people can decide they're immoral. You'd think that most Americans would oppose empowering the state to execute the innocent, and many do. The trouble lies in defining "innocent." I suspect that support for capital punishment, in the face of so much information about negligence or malfeasance in prosecuting capital cases, partly reflects an inchoate belief that even the wrongly convicted on death row are not exactly innocent -- that if they weren't guilty of the murders for which they were condemned, they were guilty of other crimes for which they weren't even tried. Along with a belief in therapeutic justice, the death penalty seems supported by an unspoken presumption of guilt.</p>
<p>
Add to that the public's apparent tolerance, post September 11, for secret, summary detentions of many innocent people in the hope of snaring even one terrorist; add, too, the judiciary's increased deference to prosecutorial discretion and you begin to comprehend the challenge facing abolitionists. Justice requires painstaking, individualized determinations of guilt and a process for correcting mistakes. It doesn't seem in much demand today.</p>
</div></div></div>Mon, 16 Jun 2003 18:45:51 +0000143058 at http://prospect.orgWendy KaminerOn the Contraryhttp://prospect.org/article/contrary-6
<div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p><span class="dropcap">S</span>ectarian conservatives have reason to resent the First Amendment: It prohibits government officials from posting the Ten Commandments in public places while it protects the Godless Americans March on Washington (scheduled for Nov. 2.) No wonder they think the road to hell is paved with the Bill of Rights.</p>
<p>
The Constitution surely paves the way to ecumenism, the scourge of most sectarians. Invoking the First Amendment, courts have consistently struck down recurrent efforts by local officials to hang copies of the Ten Commandments in public schools and courtrooms. This is because the Decalogue is not a ceremonial, nonsectarian reference to God (which the Constitution has been construed to allow); it is, as the U.S. Supreme Court has observed, a "sacred text in the Jewish and Christian faiths." Its adoption by government threatens religious as well as nonreligious minorities. Skeptical, secular civil libertarians are generally considered the enemies of religion because they are hostile to government sponsorship of sectarian religious institutions or beliefs and fearful of religious majoritarianism. But, in fact, they are quite protective of religious liberty: People who consider all religions equally false are more likely to believe that all religions should be equally free than people who distinguish between false faiths and true ones.</p>
<p>
So, strange as it may seem, I consider the American Civil Liberties Union a better friend to religious belief than George W. Bush, who is mostly a friend to conservative Christians and maybe some Orthodox Jews. He may kneel in prayer every morning and peruse the Bible daily, and he does pay rhetorical homage to Judeo-Christian-Muslim traditions, but his administration is fiercely sectarian when disbursing funds or ideologies.</p>
<p>
One obvious example of sectarian government is the administration's focus on abstinence-only sex education. (The allocation of federal dollars to abstinence-only programs was authorized by Congress in 1996; Bush is now seeking additional funds for them.) Of course, the ideal of abstinence is not sectarian or even inherently religious. But implementation of abstinence programs is apt to be relegated to sectarian groups. The state of Louisiana, for example, receives about $1.6 million in federal funds annually and disburses grants to conservative Christian groups that teach abstinence with such educational tools as Bible lessons and the performance of "Christ-centered" skits starring characters such as the "Bible guy." The Rapides Station Community Ministries, a typical grantee, has reported that it used public funds to support a religious radio program and a youth revival. A monthly report by the ministry to the Louisiana Governor's Program on Abstinence (obtained by the ACLU, which is suing the state) notes, "December was an excellent month for our program. We were able to focus on the virgin birth and make it apparent that God desire(s) sexual purity as a way of life." In order to keep teenagers pure, Louisiana has also funded prayer sessions at abortion clinics organized by the Catholic Church.</p>
<p>
The state has characterized these programs as anomalous (they're clearly unconstitutional); the ACLU contends that about one-third of community-based, abstinence-only grantees are engaged in religious proselytizing. The religious bias of Louisiana's abstinence program is made clear in some of its official publications, which claim that sexually transmitted diseases have spread because "we removed God from the classroom," concluding that "it's time to restore our Judeo-Christian heritage in America." The inclusion of Judaism seems merely polite, but perfunctory references to the Judeo-Christian tradition still pass for nonsectarianism in much of the country. </p>
<p>
Like abstinence, nonsectarianism is much more popular in theory than in practice. That's why advocates of government-funded religion invoke the vague, all-inclusive rhetoric of "faith-based" programs: It obscures the creation of a sectarian social-welfare system. So follow the money.</p>
<p>
Some of it leads to Pat Robertson, whose Virginia-based Operation Blessing International recently received a $500,000 grant from the Compassion Capital Fund, part of the Bush administration's plan to divert tax dollars to sectarian religious groups. Robertson had previously denounced the "faith-based initiative" as a "real Pandora's box" after realizing that religious minorities would be legally eligible to share in its largesse. Such groups as the Unification Church, the Hare Krishnas and the Church of Scientology "could all become financial beneficiaries of the proposal to extend eligibility for government grants to religious charities," Robertson lamented on <i>The 700 Club</i> in February 2001. He subsequently warned that religious groups could become dangerously addicted to government funds. They will "begin to be nurtured, if I can use that term, on federal money, and then they can't get off of it. It'll be like a narcotic; they can't then free themselves later on."</p>
<p>
Now Robertson is hooked, and he's not just using government funds -- he's trafficking in them. Operation Blessing is authorized to disburse the money it receives to smaller religious groups of its choosing. No Unitarians need apply. No Muslims, either. Muhammad was "a killer," Robertson recently remarked on FOX TV's <i>Hannity &amp; Colmes</i>. "To think that (Islam) is a peaceful religion is fraudulent." Methodists, Presbyterians and Episcopalians might also be on Robertson's blacklist for government funds: These faiths are infected with "the spirit of [the] Antichrist," he reportedly observed in 1991.</p>
<p>
Bush may not share all of Robertson's biases or his wacky worldviews. But the Bush administration's compassionate conservatives have made Robertson their agent in disbursing "compassion capital"; with a $500,000 grant, they are sponsoring his religious bigotry. If civil libertarians were the enemies of religious belief, they'd stop protecting it from such friends.</p>
</div></div></div>Fri, 25 Oct 2002 18:57:52 +0000142835 at http://prospect.orgWendy KaminerOn the Contrary:http://prospect.org/article/contrary-5
<div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p><span class="dropcap">I</span>t's naive to expect partisan politicians to play fair, I know; still, I'm always surprised by the boldness of their hypocrisies. Take the initial reaction of Bush administration cheerleaders to demands for an independent investigation of intelligence failures before September 11. Critics of the intelligence community were playing the "blame game," they intoned, practically in unison.</p>
<p>
Before the administration grudgingly relented and agreed on Sept. 20 to support a limited, independent post-9-11 commission, Rep. Ray LaHood (R-Ill.) summarized the party line when he dismissed calls for an independent investigation. "I think the last thing we need is another one of these blame-game commissions that, you know, is just looking to lay blame on an administration or a director of an agency," LaHood said in a National Public Radio interview in September. He professed concern that a special commission would simply duplicate efforts by the Joint House Senate Intelligence Committee. "Members of Congress and members of the Senate really are not going to be looking to lay blame but looking to try and find solutions to how we prevent this, and to have people from around the country who know little about the intelligence-gathering capability -- I think it makes no sense and I think it would be just a long-delayed kind of an activity if we were to turn it over to some -- what I would characterize as a blame game commission," LaHood said.</p>
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You have to admire the chutzpah of Republicans who suddenly declare themselves above finger-pointing. These are the people who blamed corporate crimes on Bill Clinton's libido. (By lying about his sex life, he created a climate of dishonesty that caused corporate chieftains to steal, Republicans have lamely asserted.) These are the people who brought us the Ken Starr investigation, not to mention impeachment. These are the people who blame pornography for sexual violence, marijuana use for terrorism and the 1960s for what they condemn (when convenient) as a culture of blamelessness. Listening to them denigrate the blame game, you know what it means to be shameless.</p>
<p>
Personally, I've always been in favor of blame and shame -- in moderation (and I wish Bill Clinton would accept his share of both, for public, not private offenses). In fact, almost everyone, right and left, believes in blameworthiness, although people on the right and the left define it very differently. Conservatives have cloaked themselves in the virtues of judgmentalism (but don't accuse them of playing blame games), while liberals have been stigmatized as bleeding hearts and moral relativists. But the roles are often reversed. Some religious conservatives take seriously the virtues of forgiveness. Some liberals pass judgment with fundamentalist moral fervor, as the rise of political correctness showed (consider the condemnation of evildoers who engage in "offensive" speech). Generally, thoughtful people on all sides struggle to balance justice and mercy. American culture is regularly criticized for its permissiveness, and we do enjoy relative social, sexual and political freedom; but the harshness of our penal system testifies to the popularity of assigning blame and the drive to hold people accountable for their sins.</p>
<p>
The president, who fervently supports the death penalty and has promised to "hunt down" our attackers, would agree that justice requires accountability and that accountability requires blame -- so long as no fingers are pointed at him. The administration's refusal to cooperate with Congress has greatly hampered congressional investigation of U.S. intelligence agencies, according to Richard Shelby, the ranking Republican on the Select Committee on Intelligence. Shelby, one of the administration's few GOP critics, made news around the anniversary of September 11 by citing "deep" and "widespread" failures in American intelligence.</p>
<p>
The first president Bush has suggested that pre-9-11 intelligence failures don't merit investigation, lamenting the blame game that followed September 11 and likening it to "Monday morning quarterbacks" -- as if an investigation of the nation's intelligence capabilities could only be idle hindsight. He didn't explain how we might fix problems in intelligence that we don't bother to acknowledge and understand. </p>
<p>
He didn't have to say that his opposition to investigating U.S. intelligence failures reflects the fear that his son would be blamed for them. That much is obvious. (It's not surprising that the administration has refused to divulge any information to Congress about what the president was told about terrorist threats before September 11.) I suppose it gives neither the elder nor the younger Bush any comfort to know that an honest, nonpartisan investigation would blame both Democratic and Republican administrations dating back some 15 or 20 years. Contributory negligence is too nuanced a notion for the black-and-white blame games of American politics.</p>
<p>
After last year's devastation, the president and his minions exhorted us to stand together and to eschew partisanship -- in other words, criticism of his administration -- and most Democrats obeyed. The Senate passed the USA Patriot Act with one dissenting vote (from Russ Feingold), and Democrats continue to be cowed by the president's popularity and his ability to rally voters with talk of war. (War never loses its romantic appeal to people who don't fight in it.) But the surrender of partisanship was predictably one-sided. By obstructing efforts to investigate the nation's intelligence apparatus, by marketing a war just in time for an election, the administration has elevated partisanship even over security. We're supposed to sacrifice liberty for safety, or the promise of it, while the administration clings at all costs to power. There's not likely to be regime change here.</p>
</div></div></div>Thu, 24 Oct 2002 14:23:49 +0000142818 at http://prospect.orgWendy KaminerOn the Contraryhttp://prospect.org/article/contrary-4
<div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p><span class="dropcap">I</span>t's too bad that the word "Orwellian" is losing its power from overuse, because sometimes no other word will do. Sad to say, it's often used appropriately. There's no better word to describe U.S. Attorney General John Ashcroft's depiction of himself as a freedom fighter. "We're not sacrificing civil liberties, we're securing civil liberties," he stated on National Public Radio on Sept. 11, 2002. That's why the administration has claimed the unilateral power to designate any one of us a terrorist and subject to indefinite detention without a trial -- or even knowledge of the charges against us. That's why it conducts secret searches of libraries and bookstores and who knows whose offices or computers: It wants to protect our liberty.</p>
<p>
Is this what the public needs to believe, or can Ashcroft afford to be honest with us and acknowledge that he doesn't trust or value liberty? (I doubt he even understands the notion.) Recent polls give civil libertarians reason for both hope and despair. The bad news first:</p>
<p>
The <i>State of the First Amendment 2002</i> report issued by the Freedom Forum reveals that hostility to First Amendment rights is increasing. The forum has surveyed public attitudes toward the First Amendment for the past five years, and, as its 2002 report observes, opposition to free speech engendered by a wave of political correctness in the 1990s has been exacerbated, predictably, by the threat of terrorism. This year, about half (49 percent) of survey respondents said that the First Amendment "goes too far" in guaranteeing rights, compared with 39 percent who answered similarly in 2001 and 22 percent in 2000. </p>
<p>
Press freedoms and the rights to dissent or offend were singled out for disapprobation: 42 percent of respondents said that the press enjoys too much freedom and that newspapers should not be allowed to "freely criticize" U.S. military strategy and performance. Forty-one percent favored restricting the freedom of college and university professors to "criticize government military policy" during wartime. Forty-six percent of respondents supported a constitutional amendment prohibiting flag desecration. And 64 percent said that people should not be allowed to make racially offensive remarks in public.</p>
<p>
Freedom of religion did not fare much better than freedom of speech. It's not surprising that 48 percent of respondents agreed that the government should have the power to monitor religious groups, even at the expense of members' religious freedom, in the interests of national security. (The trouble is that freedom is often infringed in the name but not the actual interests of security.) But it is discouraging that nearly the same number of respondents -- 42 percent -- endorsed religious discrimination, agreeing that the government should have more power to monitor Muslims residing legally in the United States than it has to monitor other religious groups. </p>
<p>
It's small comfort that opposition to particular First Amendment rights, in practice, was accompanied by support for First Amendment rights in the abstract. Eighty-three percent of respondents considered religious freedom essential, and 94 percent agreed that people should be able to express unpopular opinions. This is a familiar pattern: People will often profess support for individual rights until they're asked about the rights of people they fear or dislike, or the exercise of rights under circumstances of which they disapprove.</p>
<p>
So what's the good news? A September 2002 NPR/Kaiser Family Foundation/Kennedy School of Government poll discerned a "small shift toward concern about civil liberties" since last year (when a similar poll was conducted). In response to a question about the treatment of Jose Padilla, the American citizen summarily detained as a military combatant and informally accused of planning to detonate a dirty bomb in the United States, 58 percent of respondents agreed that "all American citizens are entitled to be represented by a lawyer and have their day in court." (Well, it's not exactly good news that less than two-thirds of survey respondents agreed that American citizens are entitled to due process, but, these days, it's better news than I expect.) </p>
<p>
Trust in government seems qualified (which may be bad news for liberals but good news for civil libertarians): 73 percent of respondents agreed that the government was not telling them everything they needed to know about terrorism and the threat to America. Forty-four percent expressed considerable confidence in the government's ability to protect them, compared with 58 percent who said so last year. Fifty-six percent said that the government had protected the rights of people detained in connection with terrorism investigations, down from 64 percent last year. And 59 percent approved of racial profiling targeting Arabs and other people of Middle Eastern descent, compared with 66 percent last year.</p>
<p>
The same poll also found people surprisingly divided over the perceived conflict between liberty and security. Presented with a choice, I'd have expected a strong majority to opt for security. But 44 percent of survey respondents agreed that "it's more important to ensure people's constitutional rights, even if it means that some suspected terrorists are never found." Forty-seven percent agreed that "it's more important to find every potential terrorist, even if some innocent people are seriously hurt." This was deemed a statistical tie.</p>
<p>
Maybe I've set the bar too low, but I found this tied score heartening considering that only 7 percent of survey respondents said that they had lost important rights and liberties of their own to the war against terrorism. Seventy-eight percent said they had not been forced to forfeit their own rights. It's unduly optimistic to expect that public opinion will continue to shift slightly "toward concern for civil liberty," given the prospect of war and additional attacks. But these numbers do provide hope that people can appreciate liberty before they experience repression -- in other words, before it's too late.</p>
</div></div></div>Wed, 09 Oct 2002 14:17:31 +0000142792 at http://prospect.orgWendy KaminerOn the Contrary:http://prospect.org/article/contrary-3
<div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p><span class="dropcap">"W</span>hen will it be OK to laugh again?" So the press and maybe the public wondered after last September 11. The moratorium on laughter, unofficially declared by David Letterman, was intended to signal respect for the dead and for the people who mourned them; but the desire for laughter persisted. Only people hungry for a laugh ask when one will be available. </p>
<p>
There was no disrespect in this and no denial of grief; people crack jokes at deathbeds and funerals, at least in my family. "Tell him he's driving too fast. That'll get a rise out of him," my brother said to my mother while we gathered around my father on his deathbed.</p>
<p>
I don't expect to hear even affectionate jokes such as this one around the anniversary of September 11. By the time this column appears, in late September, we will have been drenched in the inevitable bathos of commemoration -- the popular rituals of grief and "healing," the self-conscious solemnity of television's professional talkers and the banalities, or borrowed eloquence, of politicians. I'm not suggesting that this awful anniversary should be an occasion for humor. But humor -- gentle humor -- would be more respectful than the jockeying for viewers and votes that the grim date will surely inspire.</p>
<p>
It's probably too soon for black humor. I've heard children of concentration-camp survivors joke about the Holocaust ("In some bakeries in Queens, the customers don't take a number; they just raise their arms."), but even for the children of survivors the Holocaust was history, not experience. Besides, in a therapeutic culture that equates virtue with inoffensiveness, black humor is at best a mark of unenlightenment; at worst it can lead to a charge of harassment. I once pointed out ruefully that feminism lacks a sense of black humor, and that while you will, on occasion, hear a Jewish joke about the Holocaust (you might even see a Broadway musical about it), you'll never hear a feminist joke about rape. A few people have never forgiven me.</p>
<p>
Not that I miss the laughter about rape; but if rape is a political act, as many feminists have long insisted, then rape jokes are political speech. The political power of humor was made clear when it was subject to a de facto ban after September 11: Jokes about the president's questionable intellectual capabilities were suddenly taboo. (Comedy Central immediately canceled reruns of <i>That's My Bush</i>, the half-hour comedy that portrayed the president as a bumbling frat boy.) Only a few cartoonists, notably Garry Trudeau and Aaron McGruder, persisted in making fun of him and satirizing his policies.</p>
<p>
Bush still retains some immunity from satirists; although hardly absolute, it protects him from the incisive, even vicious, attacks to which American presidents ought to become accustomed. Many people are still too fearful of another terrorist attack to dare consider the president incompetent, or they are more interested in his power than their welfare. That's why the always appalling Attorney General John Ashcroft has been such a gift to political satirists. They can have their way with him. (A drawing of Ashcroft and FBI Director Robert Mueller in drag by cartoonist Kevin Siers adorns my bulletin board: "We want the FBI to return to the standards of J. Edgar Hoover," Ashcroft explains, while the Martin Luther King Jr. files spill out of Mueller's purse.)</p>
<p>
Virtually no one, however, publicly makes light of terrorism, a pending war on Iraq or other serious national problems such as the human damage of a faltering economy -- no one except the president, that is. And his jokes are neither goodhearted nor blackly funny. When he gleefully remarked that terrorism, war and a recession have given him a way out of his fiscal promises ("Lucky me: I hit the trifecta"), few people outside the more or less liberal press seemed to care.</p>
<p>
Compare the silence that greeted the president's expression of disregard for national suffering with the attacks on Democrats who weakly criticize the administration's missteps on the economy. The Democrats are accused of welcoming a recession. In private, some partisan liberals have indeed found vindication, if not pleasure, in the falling stock market, happily predicting that it will fall further, to the benefit of Democrats. Never mind that people will be hurt. But this lack of concern for actual human beings is a nonpartisan characteristic of ideologues and power mongers, left and right. They're not afraid of joking about the burdens and the horrors we face, but their jokes are mean or witless. </p>
<p>
"I call upon all nations to do everything they can to stop these terrorist killers. Thank you. Now watch this drive," Bush famously remarked this summer, during a golf course photo-op. Americans are supposed to admire cocky men who appear to take hardship and danger lightly (cocky women are still liable to be considered unnatural). But it's surprising to me that they support a president who apparently takes a tee shot more seriously than a war. His lightheartedness has nothing to do with courage, of which he has little need. He doesn't work in a high-rise or fly commercial airlines or venture anywhere without protection. And, of course, he doesn't go to war. When the United States likely invades Iraq, Bush, like Saddam Hussein, will be hunkered down before any shots are fired. </p>
<p>
I'm not suggesting that presidents shouldn't live in bubbles, and I don't begrudge them their security. But they ought to at least be sobered by the perils they inflict on their constituencies. Bush may have a sense of humor, but his jokes are always on us.</p>
</div></div></div>Mon, 16 Sep 2002 15:15:26 +0000142776 at http://prospect.orgWendy KaminerOn the Contraryhttp://prospect.org/article/contrary-2
<div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p><span class="dropcap">I</span>t's a summer of stupid lawsuits. Food "addicts" are suing McDonald's, Wendy's, Burger King and KFC, claiming that the fast-food industry creates cravings for unhealthy food and fails to provide consumers with nutritional information. (They might as well sue their parents for failing to provide them with common sense.) A female passenger is suing Delta Airlines for negligence, sexual discrimination and intentional affliction of emotional distress, because security agents asked her to hold up a vibrator packed in her mysteriously vibrating suitcase. (If this is her idea of actionable emotional distress and discrimination, you have to wonder how she gets through the day.) </p>
<p>
Conservative advocates of tort reform love frivolous cases such as these, overstating their occurrence and using them to promote a misleading image of a legal system overcome by weak, whiny clients and the greedy lawyers who encourage them. In fact, plaintiffs' lawyers who handle personal injury and civil-rights cases often provide the only hope of redress for ordinary people harmed by unsafe or unfair business practices -- the ordinary people for whom compassionate conservatives supposedly care.</p>
<p>
So it's amusing -- in fact, it's downright delightful -- to report that what may be the summer's stupidest, whiniest lawsuit was initiated by a group of religious conservatives. The Virginia-based Family Policy Network (FPN) sued the University of North Carolina at Chapel Hill (UNC) for asking incoming freshmen to read selections from the Koran and accompanying commentaries by religion professor Michael Sells. Students were also required to write a paper and participate in a discussion about the book; those who found reading about Islam abhorrent were given the option of writing a paper explaining why they chose not to read the book. (The disputed book is <i>Approaching the Qur'án</i>, edited and translated by Sells.) The lawsuit (quickly rejected in federal court) was prepared by the American Family Association, with which the FPN is affiliated. It claims that this assignment attempts "to indoctrinate students in religious belief and to promote a particular religion."</p>
<p>
It seems beyond dispute, however, that this book was assigned for pedagogical, not evangelical, purposes. No sane person would believe that UNC administrators are intent on converting incoming freshmen to Islam or infusing them with particular Islamic values. "We expect Carolina students as part of their education to learn about ideas, philosophies and practices that they never encountered before and that may differ from their own," UNC Chapel Hill Chancellor James Moeser has explained. "We chose [<i>Approaching the Qur'án</i>] because, since September 11, many of us have wondered what the core teachings of Islam really are."</p>
<p>
You might think that conservative Christian groups would be among the first to insist that schools have a right (maybe even a responsibility) to teach about religion. You wouldn't expect people who favor official school prayer to balk at academic discussions of religious ideals, except that groups such as the Family Policy Network are interested in preaching, not teaching. In other words, they favor a sectarian approach to religious education in public schools. As FPN President Joe Glover has indicated (in a typically incoherent interview on the Fox News Channel's <i>Hannity &amp; Colmes</i>), he would not object to teaching about Christianity. How, then, does FPN justify opposition to teaching about Islam? Glover complains that Sells' book presents too sympathetic a view of Islam because it omits passages of the Koran that express "hate and vitriol toward Christian and Jews." </p>
<p>
Sells explains that his purpose was "not to make a judgment about Islam" but to introduce students to the religion's key theological concepts. If he were preparing a book about the Bible to teach about Christian or Jewish theology, he adds, he would not focus on its many passages filled with hate, vitriol and violence. Rather, he'd omit excerpts from the Book of Joshua, for example, as well as the statement from the gospels that "Jews have the blood of Jesus on their hands," that has been used to persecute Jews down through the centuries.</p>
<p>
"I'm not sure whether that's relevant," Glover says, referring to Christian claims that "the Jews killed Christ," as a teenage boy informed me years ago. And Glover may have an inadvertent point: With religious conservatives enthusiastically supporting Israel, thanks to their mythologies about its role in Armageddon, anti-Semitism on the right, while not exactly irrelevant, has surely become impolitic. In fact, the FPN's lawsuit against UNC included as plaintiffs three anonymous students: one evangelical Christian, one Catholic and one Jew. </p>
<p>
This silly case never had much chance of succeeding in federal court, but it may still be a good fundraising opportunity for the FPN and its allies. Already, it's being used to castigate the American Civil Liberties Union (on whose national board I serve) for declining to support the suit. Instead, the North Carolina ACLU affiliate sent a measured letter to the university, asking it to establish guidelines for implementing the assignment and reminding it of the responsibility to teach and not preach, to respect religious privacy and to not stigmatize any students for their beliefs.</p>
<p>
If you're as outraged as some religious conservatives by the ACLU's failure to condemn teaching about world religions, and its refusal to "side with Christians and Jews" in their battle to ensure ignorance of Islam, you can add your name to a petition at <a href="http://www.conservativepetitions.com/"> www.conservativepetitions.com</a>. "Tell the ACLU to defend Christians and Jews, too," the headline on the Web page screams, with unconscious irony. Does this mean they'll stop calling us the ACLJew?</p>
</div></div></div>Thu, 12 Sep 2002 19:34:54 +0000142751 at http://prospect.orgWendy KaminerOn the Contraryhttp://prospect.org/article/contrary-1
<div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p><span class="&quot;dropcap&quot;">W</span>omen are hardwired to experience and recall emotions more readily than men, according to a study announced last month in the <i>Proceedings of the National Academy of Sciences</i>, as well as on CNN's morning show. "The wiring of emotional experience and the coding of that experience into memory is much more tightly integrated in women than in men," according to the study's lead author, psychologist Turhan Canli of the State University of New York at Stony Brook. </p>
<p>
Perhaps because this statement -- dressed in the language of neuroscience -- confirms long-standing stereotypes about men and women, it was greeted by the press with little skepticism. None of the stories I've seen -- mostly reprints of an Associated Press report -- questioned the basis for Canli's unequivocal declaration of cognitive sexual difference. But it seems rather shaky to me. Canli and his co-authors tested 12 men and 12 women. (I suppose they were "average" men and women who accurately represent the rest of us.) Each subject was presented with pictures of mundane objects, such as bookcases and fireplugs, and of objects expected to evoke strong emotions, such as guns, gravestones, corpses and electric chairs. The subjects were then asked to grade the pictures for emotional intensity. Three weeks later, they were brought back into the lab and asked to recall which pictures they had rated as "extremely emotionally intense." Women reportedly had about a 15 percent higher recall rate. "For pictures that were highly emotional, men recalled around 60 percent and women were about 75 percent," according to Canli.</p>
<p>
Canli also reported that in brain scans taken while the subjects viewed pictures, "experience and memory is processed in the same location" in women, but not in men. This is how Canli explained the MRI evidence on CNN: "You are looking at a slice of brain tissue, and the red blobs on it indicate regions of activation that are associated with the emotional experience or with the emotional memory. When you look at the women, it's in the same place. ... When you look at the men, the experience is on the left and the memory is on the right."</p>
<p>
I'm no expert on magnetic resonance imaging, but I've read that it's open to interpretation. And somehow I find these red blobs unconvincing as evidence that women are more emotionally retentive than men. You don't have to be a scientist to wonder whether a study suggesting that the emotional memories of 12 women were up to 15 percent more accurate than the emotional memories of 12 men is proof that men and women think differently; you merely need a knowledge of history. Scientific studies "proving" that men are smarter or more analytical and less emotional than women, or that men and women use their brains differently, are periodically trumpeted and more quietly debunked. Consider the conviction of 19th-century scientists, who posited that men were smarter than women because their brains were heavier. In 1880, former U.S. Surgeon General William Hammond asserted that "the brain of a woman is inferior in at least 19 different ways to the brain of a man." </p>
<p>
How did he know? Scientists hadn't studied the brains of women, as one of my favorite feminists, Helen Hamilton Gardener, pointed out. They were preoccupied with weighing the brains of famous men. Gardener skewered "scientific" theories about male and female brains in her 1893 book <i>Facts and Fictions of Life</i>. Lord Byron's reportedly huge brain weighed 2,238 grams, she acknowledged. But no man's brain weighed nearly as much as the 7,000 gram brain of a large whale. If scientists were right about the connection between brain weight and intelligence, Gardener observed, "Almost any elephant is ... perhaps an entire medical faculty." </p>
<p>
Scientific understanding of the human brain has surely advanced in the last century, but sex stereotypes still have the power to influence research, or at least the presentation of research findings. The press tends to exaggerate and over-generalize findings that suggest natural cognitive differences between the sexes, while downplaying findings that suggest cognitive similarities -- or variabilities having little apparent connection to sex. During the 1980s and 1990s, a spate of stories highlighted some questionable studies that claimed to show natural differences in male and female mathematical aptitude, and to demonstrate the effect of hormonal fluctuations on women's reasoning abilities. One researcher suggested that females take estrogen to improve their SAT scores. </p>
<p>
The press paid particular attention to a 1995 study by Yale researchers Bennett and Sally Shaywitz, which purported to show differences in the ways in which men and women use their brains. The Shaywitz study involved 19 men and 19 women who were asked to perform four cognitive tasks involving language and visual-information processing. MRI results showed no differences in brain functions of males and females when performing three of the tasks. But while performing one task (involving rhyming), 11 of 19 women (or 58 percent) reportedly used different parts of their brains than all 19 men. In other words, 100 percent of women performing three tasks and 42 percent of women performing one task apparently used their brains just like men. </p>
<p>
How were these findings characterized? "Men and Women Use Brain Differently, Study Discovers," a <i>New York Times</i> headline blared, although it could just as easily have said, "Men and Women Use Brain Similarly." Does sex play a role in cognition? Maybe, maybe not. The press and the public like certainty and affirmation of popular biases. But real science thrives on the capacity for doubt.</p>
</div></div></div>Tue, 27 Aug 2002 12:55:59 +0000142732 at http://prospect.orgWendy KaminerOn the Contrary:http://prospect.org/article/contrary-0
<div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p><span class="dropcap">C</span>onsidering the generous tax exemptions long enjoyed by religious institutions, the routine invocation of God at official events or even the persistence of blue laws prohibiting the sale of liquor on Sundays, it's clear that the "wall" between church and state has never been much more than a curtain. While separationists often succeed in closing it, advocates of state-sponsored religion have been slipping under it for years. So the U.S. Supreme Court's recent decision -- officially opening the curtain by upholding the constitutionality of a Cleveland voucher plan that channels tax dollars to religious schools -- was not unexpected or entirely unprecedented: In a series of cases, the Court has permitted various forms of public assistance to private, religious schools. [Wendy Kaminer, <a href="/print/V11/5/kaminer-w.html">"Parochial Schools and the Court,"</a> <i>TAP,</i> January 17, 2000.]</p>
<p>
I don't mean to minimize the damage that this case can cause both to religious liberty and to the integrity of religious institutions. The state aid vouchers that provide to religious schools may not be terribly different in kind from previous programs, but it promises to differ greatly in degree. Vouchers could become vehicles for unprecedented transfers of public funds from public schools to private, parochial ones. Taxpayers may be forced to provide substantial financial support to sectarian religious institutions they abhor (or consider heretical), and religious institutions may find the tenets of their faiths compromised by the government oversight that is likely to accompany government funds. The Cleveland voucher program upheld by the Court, for example, requires private schools accepting vouchers to refrain from preaching religious hatred (a provision that may be broadly construed) and from discriminating against students or teachers on the basis of religion, race or ethnicity.</p>
<p>
Recent battles over the public funding of sectarian social-service programs illustrate the dilemma such antidiscrimination clauses pose for religious institutions seeking government support. Last year, the president's "faith-based initiative" foundered on a provision that would have exempted federally funded religious programs from federal antidiscrimination laws. Many liberals and centrists would not support legislation with this exemption; conservatives would not support legislation without it. (The administration's bill, which included a civil-rights exemption, passed the House but not the Senate, where a less controversial bill does not expressly allow federally funded religious groups to ignore federal antidiscrimination law but also does not require them to abide by it. Support for the faith-based initiative also suffered when it became clear that unpopular religions or, God forbid, "cults" would be eligible for government support. [Kaminer, <a href="/print/V12/6/kaminer-w.html">"Faith-Based Favoritism,"</a> <i>TAP,</i> April 9, 2001.] School-voucher proposals are equally vulnerable to sectarian biases. (The battle over vouchers will now be fought in state legislatures and state courts, and it will be bitter.) If, for example, 96 percent of the voucher money in Cleveland were going to Muslim schools, instead of Catholic schools, there'd be much less support for the program.</p>
<p>
The strife that inevitably erupts when government partners with sectarian groups shows how separating church and state helps maintain religious tolerance. As Justice David Souter observed in his dissent in <i>Zelman v. Simmons-Harris,</i> "Religious teaching at taxpayer expense simply cannot be cordoned from taxpayer politics."</p>
<p>
The reverse may also be true: Taxpayer politics, and policies, aren't easily cordoned off from religious teachings. Consider the intrusion of sectarian religious beliefs into the administration of reproductive health care. People with religious objections to abortion should, of course, oppose it vigorously. But in a secular society, sectarian notions of sexual and procreative morality should not limit the availability of reproductive services. In our society, however, they do: According to the National Abortion and Reproductive Rights Action League, of the 19 states that require health insurers to provide contraceptive coverage, 14 offer an exemption to employers and insurers who raise religious or moral objections to contraception. </p>
<p>
It's important to understand what laws such as these do not protect: the religious liberty of individual health-care workers. Narrowly drawn clauses that apply to individuals, or to religious institutions that don't provide secular services to a general population, balance the religious rights of refuseniks with the reproductive rights of patients. (Some would argue that people who harbor religious objections to particular medical procedures should not seek jobs as health-care providers, just as people who object to the death penalty should not seek work on death row.) But broad refusal laws applying to institutions or insurers serving the general public have a very different effect than those applying to individuals or private religious groups with no significant secular functions: Such laws restrict the rights of individual practitioners who wish to provide reproductive services, despite the opposition of employers or insurers, as well as the rights of patients.</p>
<p>
Refusal clauses pose a mounting threat to reproductive-health care, especially as nonsectarian hospitals merge with Catholic hospitals, significantly reducing the availability of reproductive services. And interest in broad refusal clauses is on the rise: Like fetal protection bills or legally mandated waiting periods for women seeking abortions, refusal clauses diminish reproductive rights without directly attacking them. One congressional proposal would exempt many federally funded health-care facilities from federal, state and local laws requiring the provision of reproductive-health services and referrals. Soon, taxpayers who are forced to support sectarian schools may also find themselves at the mercy of a publicly funded sectarian health-care system. The shield of religious liberty is being transformed into a sword of religious power.</p>
</div></div></div>Mon, 12 Aug 2002 14:47:07 +0000142720 at http://prospect.orgWendy KaminerOn the Contrary:http://prospect.org/article/contrary
<div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p><span class="dropcap">N</span>early 25 years ago, in <i>Regents of the University of California v. Bakke,</i> the U.S. Supreme Court held that educational institutions may consider the race of their applicants in making admissions decisions. But the Court didn't clarify the constitutional justification for racial preferences. Are they permissible only when offered as remedies for previous discrimination (to level the playing field)? Or may racial preferences be employed in order to achieve a university administration's vision of racial balance or diversity? (I'm using the term "racial" loosely, as we often do.)</p>
<p>
There's a profound difference between these competing notions of affirmative action. Envisioning racial preferences as purely remedial greatly limits their use: An institution that hasn't discriminated against racial minorities in the past may not discriminate in favor of them in the present, and institutions that are guilty of prior discrimination may, in theory, only employ racial preferences remedially, until the prior offense is cured. But if racial preferences are justified in the name of diversity, they may be used by any institution, regardless of its history, and they may be used forever, to benefit any demographic group favored by institutional authorities. It's not surprising that liberals generally promote affirmative action as a means of achieving diversity, whereas conservatives, if forced to accept affirmative action at all, would only allow it to be used remedially. </p>
<p>
Because affirmative action pits the rights of disadvantaged groups against the rights of individuals (and equality against liberty), the problems it poses are not easily or peacefully resolved. And so decades-old battles over group preferences haven't diminished in ferocity, as a recent federal court ruling shows. On May 14, in <i>Grutter v. Bollinger,</i> a closely and bitterly divided 6th Circuit Court of Appeals in Cincinnati upheld the University of Michigan law school's affirmative-action program, which has no remedial purpose. The law school's admission policies were expressly designed to achieve diversity. </p>
<p>
In <i>Grutter, </i> the 6th Circuit narrowly ruled that the Supreme Court had endorsed diversity-based affirmative action in <i>Bakke. </i> (Other federal courts have disagreed, and the Court is likely to address this conflict soon.) The majority in <i>Grutter</i> also concurred with the University of Michigan that racial diversity advances democracy and benefits all students. (Those rejected for being insufficiently diverse may disagree.) Grutter held that the University of Michigan plan does not impose a constitutionally prohibited quota system so much as it enshrines a lawful effort to establish a comfortable, "critical mass" of students from target groups. The Michigan plan was characterized as a "plus" system, which allows the race of an applicant to be considered in admissions decisions along with other "soft" factors, such as the applicant's life experiences, talents and extracurricular achievements. The fact that members of some racial groups might be admitted with lower grade point averages and LSAT scores than applicants from other groups did not convince the court that the university maintained a two-track admission system based on race. </p>
<p>
Considering the arbitrary nature of admissions decisions, with or without racial preferences, it's hard not to sympathize with the majority view. Before colleges and universities employed racial preferences, they relied on class preferences, favoring graduates of particular schools or the children of alumni, as advocates of affirmative action regularly point out. When I entered law school in 1972 (just before the implementation of federal equal-education guarantees), graduate and professional schools openly maintained generous affirmative-action quotas for men. These generated virtually no opposition from conservatives. </p>
<p>
But if the fallacy underlying much conservative opposition to sexual or racial preferences is the assumption that without them life would be a meritocracy, liberal advocacy of affirmative action often reflects another fallacy: the assumption that the use of group preferences is cost-free and that the socially desirable goal of racial and ethnic diversity can be met without harming individuals or violating fundamental liberties. Racial (or sexual) profiling is, at the very least, problematic, whether it's employed by bigoted police officers or well-meaning educational administrators.</p>
<p>
The dissent in <i>Grutter v. Bollinger</i> focused on the harm affirmative action can do individuals even as it benefits particular groups: "The fundamental premise of our society is that each person is equally 'diverse'" and endowed with equal rights, which are violated by official racial quotas. A "critical mass" is nothing more than a quota, the dissent asserted, and in any case the concept is spurious. The number of students deemed to constitute a critical mass of a particular group is usually determined by the group's share of the population. So the quest for critical mass masks a quest for proportional representation. (That's why the critical mass the university deems necessary for the comfort of Native Americans is so much smaller than the critical mass sought for African Americans.) Exactly how does the university determine which applicants belong to a preferred racial group, anyway? Should university administrators second-guess an applicant's self-identification? If you have an African-American or Latino grandfather, do you qualify for a racial preference? As the dissent pointed out, the path toward diversity through racial preferences can lead to official determinations of racial status reminiscent of the Nuremberg race laws. This doesn't mean that affirmative action is never justified; I have always considered remedial forms of it regrettable necessities. But it does demonstrate the thoughtless perversity of assuming that allocating rights, resources and privileges on the basis of race or sex to engineer diversity is an unquestionable, unmitigated good.</p>
</div></div></div>Mon, 22 Jul 2002 18:09:36 +0000142691 at http://prospect.orgWendy KaminerAshcroft's Lieshttp://prospect.org/article/ashcrofts-lies
<div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p><span class="dropcap">C</span>onservatives are supposed to stand for personal accountability. But at the FBI, under the ultraconservative stewardship of a Republican president and attorney general, no bad deed goes unrewarded. Recent revelations that agents in Washington ignored clues of terrorist activities before September 11, and afterward covered up their incompetence, diminished what was left of the bureau's credibility, and yet promised to enhance its power. As the story of bureaucratic bumbling unfolded, 30-year-old restrictions on the FBI's authority to spy on domestic political activists, and anyone else it targets, were erased by order of the attorney general.<br /></p><p><br /></p><p>The guidelines on domestic spying were promulgated in the 1970s in response to Hoover-era abuses that included the surveillance and persecution of Martin Luther King Jr. Since September 11, Ashcroft seems to have been looking for an excuse to jettison those guidelines, and the FBI's incompetence gave him one. Searching for a scapegoat for the failures of his own intelligence apparatus, Ashcroft naturally lit upon civil liberty. It wasn't the self-protective, short-sighted, inefficient culture of the FBI that contributed to the mishandling of information before September 11, as FBI whistle-blower Coleen Rowley suggested in her May 21, 2002, letter to FBI Director Robert Mueller. It wasn't the management style of former Director Louis Freeh, a Clinton appointee who enjoyed the support of congressional Republicans. And it wasn't Ashcroft's own blindness to the threat of terrorism and his neglect of FBI counterterrorism programs. Instead, according to Ashcroft, the bureau was hampered by undue respect for individual rights.<br /></p><p><br /></p><p>He should have been laughed off the podium, but instead, the attorney general's message has been echoed by centrist and conservative commentators. They triumphantly blame a hesitancy to engage in racial profiling for the failure of FBI supervisors to even try obtaining a search warrant against accused terrorist Zacarias Moussaoui, as agents in Minneapolis requested. Evidence of such political correctness at the FBI is sparse at best. But in any case, even the staunchest critics of profiling don't suggest that law enforcement shouldn't target members of racial or ethnic minorities when there is reason to suspect them of criminal or terrorist activity; and agents in Minneapolis believed they had good reason to investigate Moussaoui. Ashcroft's supporters also point to the alleged concern of supervising agents that the warrant proposal from Minneapolis was not supported by probable cause, but Rowley claimed that a supervisor in the Washington office "deliberately undercut" the warrant proposal by altering the information in it and withholding evidence.<br /></p><p><br /></p><p>Meanwhile, <i>The New York Times</i> reported that, before September 11, agents at FBI headquarters had become skittish about submitting warrant applications in terrorism cases to the secret Foreign Intelligence Surveillance Court. But their skittishness did not, it seems, reflect scruples about probable cause: According to the <i>Times</i>, it followed a judicial rebuke to former Attorney General Janet Reno in the fall of 2000 questioning the bureau's integrity. The seven judges on the court charged that FBI supervisor Michael Resnick, in charge of surveilling Hamas, had been presenting them with misleading affidavits, which seems like a judicious way of saying he'd been lying to them.<br /></p><p><br /></p><p>But the Bush administration places no apparent premium on honesty. Officials lied to us for months about the warnings of an impending attack received before September 11. Ashcroft lies (or "misspeaks") to us now when he describes the alleged need to loosen domestic spying restrictions on the FBI. He falsely suggests that under the guidelines, FBI agents were not allowed to surf the Internet, use commercial data-mining services, or attend public functions for purposes of ferreting out terrorists. Agents, in fact, were allowed to engage in all of these activities, so long as they had a hint of criminal activity. They were also allowed to enter churches, synagogues, and mosques, when they had reason to do so. What they were not allowed to do was spy on Americans arbitrarily or engage in fishing expeditions seeking damaging information about people or groups they disliked. (You can find a comprehensive critique of the Ashcroft initiative on the Center for Democracy and Technology Web site, <a href="http://www.cdt.org" target="_blank">www.cdt.org</a>.)<br /></p><p><br /></p><p>What will be the effect of renewing our reliance on racial or ethnic profiling and eliminating all restrictions on the FBI's authority to spy on us? Privacy, liberty, and activism will suffer grievously, and so will security. As several critics have pointed out, in the months before September 11, federal intelligence agencies were not hampered by a dearth of information so much as by a lack of ability to analyze the information they had. The problem of intelligence analysis will be exacerbated if the FBI busies itself collecting additional data that has no connection to terrorism, or any other criminal activity. Ethnic profiling is unlikely to help agents collect information more productively. As the unmitigated failures of the drug war have shown, profiling by race or ethnicity is not an effective form of crime control; it's simply an effective form of discrimination. It also blinds us to the risks posed by people, such as Timothy McVeigh, who don't fit the profile. El Al Airlines, often lauded for profiling passengers, doesn't simply rely on race or ethnicity: Its profile of potential terrorists reportedly includes "young single women traveling alone."<br /></p><p><br /></p><p>Give the FBI unchecked domestic spying powers and instead of focusing on preventing terrorism, it will revert to doing what it does best -- monitoring, harassing, and intimidating political dissidents and thousands of harmless immigrants. Law-abiding Americans have good reason to question and fear Ashcroft's latest initiative, but terrorists should be quite pleased with it.</p>
<p></p></div></div></div>Thu, 27 Jun 2002 17:22:26 +0000142663 at http://prospect.orgWendy KaminerPorn Againhttp://prospect.org/article/porn-again
<div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p><span class="dropcap">F</span>ree-speech advocates who cheered the recent Supreme<br />
Court decision striking down portions of the Child Pornography Prevention Act<br />
(CPPA) should not have been surprised when Attorney General John Ashcroft and<br />
members of Congress quickly announced their intention to enact another, similar<br />
child-porn law for the courts to consider. Congress and the White House (under<br />
both Bill Clinton and George W. Bush) have not been deterred by concerns about<br />
constitutional liberties in their campaigns against speech presumed to be harmful<br />
to children. After the Supreme Court struck down the obviously unconstitutional<br />
Communications Decency Act, which banned "indecency" online, in 1997, Congress<br />
quickly enacted the Child Online Protection Act (COPA), which banned commercial<br />
speech deemed "harmful to minors." A federal appeals court struck down COPA, but<br />
the Supreme Court recently sent it back to the lower courts while continuing to<br />
enjoin its enforcement.</p>
<p>
Maybe Congress and the White House don't care whether laws like these<br />
are constitutional or likely to withstand judicial scrutiny. Maybe they care<br />
mainly about getting credit for their passage (while draining the resources of<br />
free-speech organizations by forcing them to challenge unconstitutional laws).<br />
Consider the similar constitutional flaws in the CPPA provisions struck down<br />
April 16 (in <i>Ashcroft v. Free Speech Coalition</i>) and the new child-porn bill<br />
offered by the administration and Congress.</p>
<p>
The invalidated sections of the CPPA criminalized "virtual" or apparent child<br />
porn -- computer-generated images that "appear" to be actual child porn and<br />
sexually explicit images of youthful adults who "appear" underage. It prohibited<br />
the promotion or distribution of sexually explicit material in a way that<br />
"convey[ed] the impression" that it was actual child porn, and it also banned the<br />
mere possession of such images. [See Wendy Kaminer, "<a href="/print/V12/11/kaminer-w.html">Courting Unsafe Speech</a>,"<br /><i>TAP</i>, June 18, 2001.] In a strong defense of the First Amendment, Justice<br />
Anthony Kennedy's majority opinion in <i>Ashcroft</i> pointed out that the ban on<br />
porn that only "appears" to involve minors was essentially a ban on ideas: As<br />
opponents of the law have argued, the CPPA established thought crimes. Fantasies<br />
about children having sex are repellant to most of us, but the First Amendment is<br />
intended to protect repellant imaginings. As Justice Kennedy stressed, it<br />
"draw(s) vital distinctions between ... ideas and conduct." </p>
<p>
Of course erasing those distinctions has long been the goal of antiporn<br />
activists, right and left, and in defending the CPPA, the government argued that<br />
virtual child porn "whets the appetite" of pedophiles and causes abuse. That's a<br />
popular assertion, but there's no proof of it -- and even if there were some<br />
truth to suspicions about the effects of fake child porn, the Court observed that<br />
"the mere tendency of speech to encourage unlawful acts is not a sufficient<br />
reason for banning it." The majority also dismissed the government's claim that a<br />
ban on virtual child porn was necessary because it is often indistinguishable<br />
from actual child porn. Kennedy characterized this argument as "implausible" (it<br />
was also unsubstantiated), and he wrote that, in any case, "The Government may<br />
not suppress lawful speech as the means to suppress unlawful speech." </p>
<p>
These statements of principles in <i>Ashcroft </i>are strong but not<br />
groundbreaking. They should be familiar to anyone with a rudimentary<br />
understanding of First Amendment law. As Kennedy stressed, the Court long ago<br />
allowed the prohibition of obscene material (in the 1973 <i>Miller v. California</i><br />
case), but the definition of obscenity excludes material with some redeeming<br />
social, literary, artistic, political, or scientific value. Twenty years ago (in<br /><i>New York v. Ferber</i>) the Court upheld laws criminalizing actual child porn<br />
regardless of any redeeming value, in order to protect children harmed in its<br />
production. The CPPA could not be upheld as a ban on obscenity under Miller<br />
because it made no allowances for redeeming social value; it could not be upheld<br />
as a ban on child porn under Ferber because it targeted the content of virtual<br />
child porn, not the harmful production of the real thing.</p>
<p>
The new law proposed by Ashcroft and his congressional cohorts shares the<br />
obvious constitutional flaws of its predecessor. Because the Court struck down<br />
the CPPA ban on sexually explicit images that "appear" to depict actual minors,<br />
the new bill includes semantic cover: It bans any sexually explicit image that<br />
appears "virtually indistinguishable" from a sexually explicit image of actual<br />
minors. The Court struck down the CPPA ban on promoting, distributing, or<br />
possessing virtual child porn that is promoted as real, partly because it would<br />
have applied to people who acquired the porn without knowing how it had been<br />
marketed. So the new bill makes it a crime to knowingly solicit actual child<br />
porn, whether or not the solicitation is successful. In other words, it makes you<br />
criminally liable for merely writing an e-mail expressing an interest in child<br />
porn. The bill also criminalizes exposing children to virtual child porn.</p>
<p>
It is likely that some version of this proposal will be enacted. (Republican<br />
Orrin Hatch and Democrat Patrick Leahy, who is generally sympathetic to civil<br />
liberties, have introduced another similar, less grievously unconstitutional ban<br />
on virtual child porn in the Senate.) A reasonable effort to prosecute active<br />
pedophiles has morphed into a nutty crusade against the idea of pedophilia. As<br />
Republican Congressman Mark Foley nonsensically remarked, "Pedophiles do not have<br />
a First Amendment right to gawk over exploited children, real or virtual." Don't<br />
bother to ask how anyone exploits a virtual child. Antiporn feminists once<br />
protested the sexual abuse of actual women and children by images. (Pornography<br /><i>is</i> rape, they proclaimed.) Now lawmakers target the abuse of imaginary<br />
children by actual women and men.</p>
<p></p></div></div></div>Tue, 18 Jun 2002 20:27:25 +0000142643 at http://prospect.orgWendy KaminerI Snoophttp://prospect.org/article/i-snoop
<div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p><span class="dropcap">W</span>hat's the difference between a spy and a snoop? It's not merely semantic. Snoops are objects of derision -- nosy neighbors, Peeping Toms, or perverts. Spies are heroes, or antiheroes at least, as the resilience of James Bond fantasies attest. So when Attorney General John Ashcroft exhorts neighborhood groups to be on the lookout for terrorists in their midst, he's inviting them to see themselves as spies, not the snoops that some will turn out to be.</p>
<p>
In March, the attorney general announced that the Neighborhood Watch Program, conceived some 30 years ago to help prevent ordinary street crimes, will be enlisted in the war against terrorism. With the aid of a $1.9 million grant to the National Sheriffs' Association, the number of groups nationwide will be doubled -- to 15,000 from 7,500 -- and ordinary Americans "will be provided with information which will enable them to recognize signs of potential terrorist activity." What sort of signs? "We expect people to be aware of suspicious behavior," a Neighborhood Watch Program spokesperson said.</p>
<p>
Do you feel safer yet? There's nothing funny about terrorism, but the administration's responses to it are sometimes blackly humorous. When Ashcroft announced the Justice Department's new antiterrorism mission for the Neighborhood Watch Program, he was introduced by Ed McMahon, who last distinguished himself as the pitchman for sleazy "sweepstakes" sponsored by Publishers Clearing House. Your chances of being protected from terrorists by the Dick Tracy next door, equipped with a government handbook, are probably no greater than your chances of winning the Publishers Clearing House sweepstakes. But I doubt that's the message Ashcroft intended to send. Instead, he promised that the newly expanded Neighborhood Watch Program "will weave a seamless web of prevention of terrorism that brings together citizens and law enforcement."</p>
<p>
To complement this "web" of surveillance by neighborhood snoops, the Justice Department is also establishing a<br />
surveillance program for America's workers. Operation TIPS (the Terrorist Information and Prevention System) will be launched in August 2002. Justice Department descriptions<br />
of TIPS are typically and ominously vague: "It will be [a]<br />
national reporting system that allows [those] workers, whose routines make them well-positioned to recognize unusual events, to report suspicious activities." Which workers does the Justice Department seek to enlist? "American truckers,<br />
letter carriers, train conductors, ship captains, utility employees, and others." Do you feel safe now knowing that the average utility worker -- in other words, the cable guy -- is watching out for terrorists? </p>
<p>
Will Americans embrace this program of ubiquitous<br />
surveillance? The fear and mistrust that it reflects and is sure to reinforce could undermine its credibility: Logic suggests that paranoid people won't trust the veracity of informants any more than they trust informees. But logic has little to do with it. Fear leads people to believe accusations of criminal activity and disbelieve denials of it; informing thus is<br />
becoming the American way. Consider the popularity of statutes requiring people to report "suspicions" of child abuse.</p>
<p>
According to the National Clearinghouse on Child Abuse and Neglect Information, every state and the District of Columbia have laws requiring people such as social workers, health-care providers, and teachers to inform authorities when they suspect or have reason to suspect child abuse or neglect. These laws have been in the news lately, of course, because of the drive to include clergy as mandatory reporters (a majority of states already do). I'm as eager as the next outraged citizen to see the leaders of the Catholic Church held accountable for facilitating abuse (among other hypocrisies). But I'm not anxious to expand our "web" of informants. </p>
<p>
What's the use of mandatory reporting? It's possible, of course, that many actual cases of abuse are reported, if not<br />
investigated and addressed, on account of these laws. But it seems equally possible that people who work with children and care about them would respond to evidence of their abuse, whether or not reporting were required by law.</p>
<p>
What's the harm of mandatory reporting? There's a fine line between raising consciousness and provoking hysteria about child abuse, especially in a society that has long been preoccupied with it. Reporting laws may encourage frivolous, unfounded, or inappropriate accusations of abuse. They may, for example, lead teachers to turn in 18-year-old boys who are having sex with their 15-year-old girlfriends. Or they may require reporting of accusations that the reporters themselves believe to be false. In any case, we don't require citizens to report suspicions of arson, robbery, or other crimes, at least not yet. Why require people to report mere "suspicions" (rather than knowledge) of child abuse? </p>
<p>
It's trite but true that many Americans today regard suspected child abusers and "potential" terrorists the way they regarded communists in the 1950s. So their clandestine presence among us (they may look like you or me) is a predictable incentive for the creation of an informant state. It's not surprising that the attorney general wants to deputize all good Americans -- to marry citizens to law enforcement -- but liberty requires our separation from the state. Civil libertarians police their government, not their neighbors. Community<br />
requires trust -- the belief that your neighbor won't report you to the FBI because he doesn't think you're normal. Renowned sociologist Ed McMahon says that an enhanced network of neighborhood snoops will encourage Americans "to be closer to one another." I suspect it will drive us apart.</p>
</div></div></div>Tue, 04 Jun 2002 20:56:14 +0000142619 at http://prospect.orgWendy KaminerDrugs, Terror, and Evictionshttp://prospect.org/article/drugs-terror-and-evictions
<div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p><span class="dropcap">T</span>hanks partly to its association with 1960s<br />
counterculture, marijuana use has long been considered vaguely un-American. Never<br />
mind that millions of Americans have indulged in it. The pot-smoking pinkos of<br />
yesterday are -- according to the Bush administration -- the aiders and abettors of<br />
terrorists today. </p>
<p>
A new series of antidrug ads aimed at teenagers, commissioned by the White<br />
House Office of National Drug Control Policy, blames consumers of illicit drugs<br />
for the proliferation of terrorism. "Drug money supports terror," the ads<br />
proclaim. "I helped a bomber get a fake passport," one young actor confesses.<br />
Others own up to helping terrorists blow up buildings, murder police officers,<br />
and teach other kids how to kill. "Where do terrorists get their money?" the ads<br />
ask. "If you buy drugs, some of it might come from you." </p>
<p>
You can view a typical "I helped" ad (and other official anti-drug<br />
propaganda) at <a href="http://www.mediacampaign.com" target="outlink">www.mediacampaign.com</a>. There you'll find details about the<br />
"undeniable link between terror groups and illicit drugs. ... Twelve of the 28<br />
terror organizations identified by the U.S. Department of State in October 2001<br />
traffic in drugs." You'll also find a role for yourself in the fight against<br />
terrorism. In addition to shopping, you can stop using drugs -- illegal drugs, that<br />
is; you may continue smoking tobacco and abusing alcohol or valium. "If you quit<br />
drugs, you join the fight against terrorism in America," the president has<br />
proclaimed, making it clear that using particular drugs is tantamount to treason.<br />
(You are, after all, either with the president or against him.)</p>
<p>
I don't mean to deny the link between the drug trade and terror. Traffic in<br />
illegal drugs has greatly contributed to violence at home and abroad. (Before<br />
drug trafficking was blamed for international terrorism, it was financing the<br />
arms race in America's streets.) But I do mean to mock the administration's<br />
limited understanding of cause and effect. Blaming drug consumption -- and not drug<br />
prohibitions -- for the violent trafficking in drugs, the administration reminds<br />
me of a terrier I once had who refused to approach the intersection where a<br />
speeding car had grazed him, although he blithely continued crossing other<br />
streets. He blamed his injury on one particular street, not the perils of running<br />
in front of any particular car. </p>
<p>
He was a smart dog and not entirely illogical, but his analysis was deeply<br />
flawed, like the administration's analysis of the link between terror and drugs:<br />
It's not the demand for drugs that creates a highly lucrative, violent, and<br />
apparently ineradicable black market; it's the prohibition of drugs that are<br />
greatly in demand. It's not the demand for drugs that props up repressive<br />
regimes that nurture and harbor terrorists. It's American support for those<br />
regimes that agree to combat the illicit drug trade. When the antidrug ads ask,<br />
"Where do terrorists get their money?" the right answer is, "If you pay taxes,<br />
some of it may come from you." In the spring of 2001, the Bush administration<br />
gave $40 million dollars to the Taliban because it promised to crack down on<br />
opium growers. </p>
<p>
Meanwhile, impoverished Americans who rely on government subsidies have been<br />
made the casualties, not the beneficiaries, of the war on drugs. Under a 1988 law<br />
(passed by a Democratic Congress, signed by President Reagan, and strengthened by<br />
President Clinton, who ordered its stepped-up enforcement), public-housing<br />
tenants may be evicted from their apartments if any member of their household or<br />
any guest is caught using illegal drugs "on or near the premises," whether or not<br />
the tenant had any knowledge or control of the drug use. A unanimous Supreme<br />
Court recently upheld this harsh "one-strike" law in a case that dramatized its<br />
abuses. Decided on March 26, <i>HUD v. Rucker</i> allowed the eviction of a<br />
63-year-old great-grandmother whose disabled daughter was caught with cocaine<br />
some three blocks from the projects, as well as the eviction of a 75-year-old<br />
partially paralyzed man whose caregiver was found with cocaine in his apartment.</p>
<p>
<span class="dropcap">T</span>he war against drugs has long been a war against poor people and<br />
racial minorities, as its opponents stress. (African Americans constitute a small<br />
minority of the nation's drug users but a large majority of people sentenced for<br />
drug offenses.) When the children of affluent people are caught using drugs,<br />
they're apt to end up in treatment programs; the children of poor people are more<br />
likely to end up in jail, while their parents may end up on the streets. You<br />
don't have to be soft on drugs to recognize the inequities. As Dan Abrahamson,<br />
director of legal affairs for the Drug Policy Alliance (formerly the Lindesmith<br />
Center-Drug Policy Foundation) remarked, "Jeb Bush was not kicked out of his<br />
public housing due to his daughter's drug use." </p>
<p>
Indeed, a federal appeals court had enjoined the no-fault eviction of<br />
unelected public-housing tenants, noting that it raised "serious" due-process<br />
questions by allowing "tenants to be deprived of their property interest without<br />
any relationship to individual wrongdoing." But neither the relatively liberal<br />
nor the conservative wing of the Supreme Court perceived any constitutional<br />
restriction on no-fault evictions. All the justices (except Justice Stephen<br />
Breyer, who did not participate in the decision) apparently agreed with Congress<br />
that the scourge of illicit drug use poses a greater threat to poor people living<br />
in subsidized housing than a no-fault eviction policy that may render them<br />
homeless if one of their grandchildren is caught with a joint on a nearby street<br />
corner. What are all these drug warriors smoking?</p>
<p></p></div></div></div>Thu, 16 May 2002 15:51:35 +0000142600 at http://prospect.orgWendy KaminerLies and consequences.http://prospect.org/article/lies-and-consequences
<div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p><span class="dropcap">"T</span>here are lots of different situations when the government has legitimate reasons to give out false information," Solicitor General Theodore Olson told the U.S. Supreme Court in March. He was defending the government's right to lie in <i>Harbury v. Christopher</i>, Jennifer Harbury's lawsuit against former Secretary of State Warren Christopher and other high-ranking Clinton appointees. Harbury alleges that the Clinton administration lied to her about the detention and torture of her late husband, who was captured by the Guatemalan military in 1992 and eventually killed -- while she pleaded for assistance in finding him. According to Harbury, government officials told her they had no information about her husband when, in fact, they knew he was in the custody of Guatemalans working with the CIA.</p>
<p>The truth of her claim that the government lied is not at issue before the Supreme Court. Rather, it must simply decide if she has a right to sue officialdom for purposefully deceiving her in order to prevent her from taking legal action. This may seem like an easy case to those who believe that no one is above the law. People who imagine that their government is on their side may wonder why it should be endowed with the unchecked power to deceive them -- a power that may be exercised without any judicial review. But Harbury, a lawyer who argued her own case before the Supreme Court (to the apparent discomfort of justices unaccustomed to confronting the people whom their decisions most affect), is likely to lose her bid to sue the government. You may think this is a case about lying, but the court is apt to regard it as a case about foreign policy, with which it's loath to interfere.</p>
<p>Are foreign policy and truth compatible? Some presidents have had their doubts. The Bush administration recently announced a plan to distribute misinformation to foreign media through the Pentagon's proposed Office of Strategic Influence. In February the administration quickly retreated; the propaganda office was aborted when its intentions were publicized and its potential effectiveness destroyed. Still, the president claimed to be acting on principle, not pragmatism. He professed firm disapproval of the lying initiative, saying, "We'll tell the American people the truth," shortly before his solicitor general defended the administration's right to tell American people lies.</p>
<p>Is lying ever justified? Bill Clinton clearly felt justified in lying to lawyers investigating his sex life. If they had no moral right to ask the questions, you imagine him reasoning, he had no moral obligation to answer them honestly. Richard Nixon retained tape-recorded evidence of his own lies about the Watergate break-in and other scandals, so secure was he in the presidential power to dissemble. George W. Bush has only been caught uttering relatively small lies so far: asserting during the campaign that he had championed a patients' bill of rights in Texas when he had, in fact, opposed it, and claiming more recently that he inherited his association with former Enron chief Kenneth Lay from his predecessor in the Texas governor's office, Ann Richards. The extraordinary secrecy of the Bush administration obviates some of its need to lie but, like the Catholic Church, it may someday be held accountable for the moral corruption that secrecy spawns.</p>
<p>Meanwhile, alleged moral exemplars, from presidents to popes, along with lesser beings (the rest of us) tell lies in the belief that they serve a greater good. Lies are often imbued with transcendent instrumental value by the individuals and institutions that utter them. Sometimes the lies are self-serving, of course, but the tendency -- or temptation -- to lie in service of justice makes it virtually impossible to condemn all lying categorically.</p>
<p>When the Gestapo bangs on your door, you had better lie about the Jew you're hiding in the basement. The moral choice, however, is not always so clear: Do you have a right to lie to governments or other interrogators whenever you believe they are acting unjustly? If you consider the tax code oppressive, are you justified in lying to the IRS? If you oppose the death penalty (as I do) because you consider it immoral, should you lie if you're called to serve on a jury in a capital case? Should you tell the court that you have no quarrel with capital punishment in the hope of qualifying as a juror and thwarting an execution?</p>
<p>I'm afraid I'd tell the truth, partly in the belief that truth is easier to discern than justice and partly because I imagine that, if everyone always told the truth in court, we'd end up with more justice, not less. But I might be wrong; my truth telling might be immoral.</p>
<p>Still, truth often seems the safer choice, though it's bound to be the wrong choice on occasion. At least it saves us from the self-deception to which many liars are prone. To rationalize their lies, people -- and the governments, churches, or terrorist cells they compose -- are apt to regard their private interests and desires as just. Clinton may have lied to preserve his power while telling himself that he was lying to protect "the people" who benefited from his presidency. Liars -- especially liars in power -- often conflate their interest with the public interest. (What's good for General Motors is good for the United States.) Or they consider their lies sanctified by the essential goodness they presume to embody, like terrorists who believe that murder is sanctified by the godliness of their aspirations. Sanctimony probably engenders at least as much lying as cynicism. We can't condemn lying categorically, but we should categorically suspect it.</p>
</div></div></div>Thu, 25 Apr 2002 16:06:54 +0000142586 at http://prospect.orgWendy KaminerCopywrongshttp://prospect.org/article/copywrongs
<div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p><span class="dropcap">I</span>f I drop dead tomorrow, all the work I've produced since 1978 will enjoy copyright protection for the next 70 years, until 2072, some 120 years after my birth. If I live another 30 years or so all the work I've produced since 1978 will be protected into the beginning of the twenty-second century. Much as I value my copyrights, which allow me to control and profit from my work, and much as I disdain plagiarism and pirating, I don't expect to derive any benefit from copyrights that survive me by decades. But, then again, the Copyright Extension Act of 1998, which added an additional 20 years to almost all existing copyrights, wasn't intended to benefit me or other individual writers and artists. It was primarily intended to benefit corporations that expect to live forever, with congressional assistance: Disney may prove virtually immortal, if it never loses the rights to Mickey Mouse.</p>
<p>Disney lobbied hard for the 1998 law, partly because Mickey's copyright was due to expire in 2003. Now it will last an additional 20 years, until 2023, or the expiration of the next copyright extension -- whichever comes second. Can Congress repeatedly extend copyrights for decades, impoverishing the public domain, to benefit corporations and the distant descendants of individual creators? That question is now before the Supreme Court: In <i>Eldred v. Ashcroft,</i> it agreed to review the constitutionality of the 1998 copyright-extension law. </p>
<p>The law has been challenged by a group of nonprofit organizations and businesses that use works in the public domain. The lead plaintiff, Eric Eldred, operates Eldred Press, which posts literary works by authors such as Nathaniel Hawthorne on the Internet. Eldred and his co-plaintiffs are represented by an impressive array of lawyers, including Stanford University professor <a href="http://cyberlaw.stanford.edu/lessig/" target="outlink">Larry Lessig</a>, and Charles Nesson and Jonathan Zittrain of Harvard Law School's <a href="http://cyber.law.harvard.edu/" target="outlink">Berkman Center for Internet and Society</a>. All have a strong ideological commitment to preventing new technologies from destroying the traditional balance between the intellectual property rights of creators and unrestricted dissemination of information, ideas, and entertainment. </p>
<p>The notion that creators should be granted exclusive, but temporary rights in their work is enshrined in the Constitution. The copyright and patent clause gives Congress the power to grant authors and inventors exclusive rights to their work "for limited times," in order to ensure artistic and scientific progress. Temporal limits on copyrights strike an essential compromise between the rights of creators and the public's interest in their creations. Depriving individuals of all rights to their work leaves them with little incentive to produce it; permanently depriving the public of any right to use the work freely is antithetical to democratic faith in a marketplace of ideas.</p>
<p><i>Eldred v. Ashcroft</i> focuses on the constitutional mandate that copyrights last only for "limited times." Originally copyrights were relatively brief; pursuant to the Copyright Act of 1790, they lasted a maximum of 28 years. Copyrights were then extended by Congress repeatedly; under the 1976 law, copyrights lasted the author's lifetime plus 50 years; works for hire (like Mickey Mouse) lasted 75 years from the year of publication or 100 years from the date of creation, whichever came first. Given the extraordinary life of copyrights today, and the effect of their longevity on public access to music, literature, and other intellectual properties, Congress has arguably violated the Constitution by granting effectively unlimited copyrights. Like leases with automatic renewal clauses, copyrights may never terminate.</p>
<p>In issuing unlimited copyrights, Congress is also arguably subverting the intent of the copyright clause: to provide for artistic progress. Fewer works will be created under a system of endless copyrights. There's no reason to believe that people would be deterred from creating new works if copyrights lasted "only" for the duration of their lifetimes, or lifetimes plus 50 years. But the longer copyrights last, the less likely that other people inspired by the copyrighted work will use it to create new works, like <i>The Wind Done Gone,</i> the recent parody of <i>Gone with the Wind</i> that Margaret Mitchell's heirs attempted unsuccessfully to suppress. Indeed, Disney's use of works in the public domain, like <i>Cinderella</i> or <i>Winnie-the-Pooh,</i> which recently generated an estimated $4.5 billion of annual income for Disney and its licensees -- testifies to the importance of a rich public domain in inspiring new creations.</p>
<p>What inspires and sustains writers and artists? The opportunity to profit from your work matters greatly, of course. Only people with more money than imagination think that artists benefit from the daily stress of poverty. But in general, the creation of art and literature is not terribly remunerative. On an hourly basis, I've probably made little more than a minimum wage through much of my writing career. For me, the value of copyrights often lies mainly in the control they allow me to exert over my work: No one can publish or alter it, anywhere or in any way, for any purpose, without my permission. </p>
<p>But a copyright that lasts my lifetime would give me all the rights to my work that I need, or could use. And, during my lifetime, I might derive some psychic benefit from knowing that after my death my work would be publicly available, without restriction. Why do writers and artists create? Their reasons vary, of course. I write partly out of an irresistible impulse to hold forth -- for the sheer pleasure of expressing and communicating ideas -- partly for the satisfaction of being credited and recognized for my work, partly to persuade people, and partly to provoke public conversations and consideration of ideas. I'm frustrated when readers misinterpret my work and invigorated when they interpret it unpredictably. I don't believe in an afterlife, but I suspect that my work would survive if my copyrights died with me.</p>
</div></div></div>Tue, 16 Apr 2002 14:31:43 +0000142562 at http://prospect.orgWendy KaminerAshes to concrete.http://prospect.org/article/ashes-concrete
<div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p><span class="dropcap">P</span>astor Charles Cornwell of Center Point Baptist Church in Noble, Georgia, attributes the macabre dereliction of duty by local crematorium operator Ray Brent Marsh to sin: "Sin blinds us and sin makes us do dumb things." Neglecting to cremate more than 300 corpses and leaving them to rot in your backyard surely is "a dumb thing," but I might attribute it to more mundane failings than sin. </p>
<p>Maybe Marsh is just an incorrigible procrastinator, with no good excuses and a streak of dishonesty. His sins -- chronic lateness, an inability to meet deadlines, and a tendency to lie -- are shared by a large segment of the workforce. Think about building contractors who never, ever get their jobs in on time or abandon them unfinished, auto mechanics who charge for repairs that they didn't perform, or doctors who don't get around to checking their patients' lab reports. Think about students who put off writing their papers until it's time to buy them on the Internet. You might say that the decomposing bodies at Marsh's dysfunctional crematorium present us with a cautionary tale about letting your work pile up. </p>
<p>Of course, it takes more (or less) than a lack of pride in your work to tolerate piles of corpses. It takes extraordinary callousness, not just toward the people who trusted you with the bodies of their loved ones but also toward death itself. The betrayal of trust and the disrespect of grief are despicable -- in that betrayal lies sin -- but the lack of sentiment about dead bodies doesn't reflect a moral lapse so much as a sentimental one. We're unsettled by the cool rationalism that treats a corpse like landfill instead of like a holy relic.</p>
<p>We fetishize bodies and praise ourselves for doing so. We tell ourselves that the rituals by which we preserve or destroy corpses reflect moral seriousness, the strength to acknowledge death and integrate it into our lives, and respect for the deceased. We presume that the failure to value a dead body implies a failure to value the person who once enlivened it. </p>
<p>"I can only think of my mom, of her lying out in the wind and cold, tossed into the ditch like an old shoe," one woman poignantly lamented. "I feel somehow I have let her down. I loved my mom. She was an old lady and I wanted her death to be dignified."</p>
<p>"That's not your mom in the ditch," I want to remind her. "She's well beyond indignity. The manner in which her body is treated after death has nothing to do with the manner in which she died." </p>
<p>But if the daughter's response to the discovery of her mother's corpse is sentimental, my response to her lament is naive. Rationalism has little power over grief.</p>
<p>I don't mean to denigrate the impulse to sanctify corpses, but I do wonder at it. If you believe in immortality, as most people apparently do, why worry about an empty vessel that the soul or spirit leaves behind? </p>
<p>"We're Christians and we knew he was with God," another woman whose deceased relative was found on the crematorium grounds remarked. Still, she was unaccountably stricken by the failure to cremate his remains: "Nothing can prepare you for this. We are numb." </p>
<p>The "numbness" of the irreligious is equally irrational. If you believe that all life ends with death, than what's the difference between a rotting corpse and a rusting car? One stinks and the other doesn't. </p>
<p>One was once a human being and the other wasn't, you might add. That's why law -enforcement officers and workers involved in cleaning up the site of the Tri-State Crematory have been sickened by what they've seen and why their nausea seems appropriate. We'd question the empathy of anyone who could confront such awful sights and smells unflinchingly. So much fortitude in the face of so much death -- and so much disregard for the feelings of the living -- would be troubling. I'd rather lose my body or the body of a loved one to the junkyard than be charged with disposing of 300 rotting corpses.</p>
<p><span class="dropcap">M</span>y husband says that I should take him out with the trash when he croaks. My father, who died last month, a week before the gruesome discovery in Georgia, was indifferent to the disposal of his corpse. He cared deeply about the living and not at all about the bodies of the dead, his own included. My father would have been intrigued by the story of the Georgia crematorium. He would have found the dishonesty of the crematory owner and the anguish of his customers almost equally unfathomable. He would have appreciated the folly of it all. </p>
<p>Someday, the pile of bodies in Marsh's backyard will be fodder for satirists. For now, it's fueling proposals to increase oversight of the funeral industry, which is often unregulated. Recent press reports suggest that the horrors of the Tri-State Crematory may be distinguished only by their scale. Crematory and cemetery owners have been caught selling body parts, dumping corpses into mass graves, piling them up in the garage, and exhuming old bodies to make way for new ones. </p>
<p>But even this grim and earnest examination of the body-disposal business has its lighter side: "Corpse Dumping Unlikely in New Jersey," Bergen County's <i>Record</i> blithely proclaimed, inadvertently reminding us that it's still okay to laugh.</p>
</div></div></div>Wed, 13 Mar 2002 23:18:55 +0000142531 at http://prospect.orgWendy KaminerSecrets and lies.http://prospect.org/article/secrets-and-lies-1
<div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p><span class="dropcap">A</span>ssuming that the late former Enron vice Chairman Cliff Baxter died by his own hand and not the hands of others who feared he might testify against them, you might blame Baxter's suicide on guilt, shame, or fear of financial ruin. Linda Lay, wife of former Enron CEO Kenneth Lay, blames the media: "Cliff was a wonderful man," Mrs. Lay lamented in a nationally televised interview; his apparent suicide "is a perfect example of how the media can play such havoc and destruction in people's lives."</p>
<p>There's nothing new about efforts to scapegoat the media, and these sometimes seem justified by the sins of tabloid journalism. But for every victim of the press, there are many legitimate targets, from Richard Nixon and O.J. Simpson to Gary Condit and Kenneth Lay. Often, media scapegoating simply reflects an effort to evade individual accountability. People who resent being caught sometimes blame the press for their downfall -- as if reporting crime is worse than committing it.</p>
<p>Linda Lay's clumsy attack on the press is unlikely to distract many people from the sins of Enron executives or the consequent suffering of employees and shareholders. But people with power often succeed in suppressing vital public information that would incriminate or embarrass them. President Bush has a strong affinity for secrecy: He has issued an executive order delaying the legally mandated release of papers from previous presidential administrations and sequestered his own gubernatorial records in his father's presidential library in order to evade the requirements of Texas's Public Information Act. His administration has ordered federal agencies to resist Freedom of Information Act requests, refused to answer questions about Vice President Dick Cheney's energy-policy meetings, and denied a congressional request for Justice Department memos concerning the FBI's murderous 30-year collaboration with Boston-area gangsters.</p>
<p>
<span class="dropcap">A</span>s the Bush administration is learning, however, attempts by presidents to keep public information private are likely to attract press attention and lawsuits. Lesser officials keep secrets with less public scrutiny. Consider efforts by prosecutors to hide evidence of wrongful convictions. Peter Neufeld, co-founder of Cardozo School of Law's Innocence Project, estimates that during the past 10 years prosecutors have opposed postconviction DNA typing in about half of the cases in which it has been requested. Boston-based defense attorney Harvey Silverglate observes that sometimes prosecutors even oppose requests for new trials after testing has virtually exonerated a convicted defendant.</p>
<p> Take the case of 41-year-old Bruce Godschalk. He spent the past 15 years in prison for two rapes committed in a Philadelphia suburb in 1986. He was convicted on the basis of a confession, which he insists was coerced and effectively written by the interrogating detective, who supplied him with unpublicized facts about the crime. In addition, one victim chose his photo from a group of mug shots; the other victim was unable to make an identification. Godschalk had no record of violence and two prior arrests -- for possession of marijuana and for driving while impaired.</p>
<p>Godschalk spent seven years trying to arrange for DNA testing of the evidence in his case, at his own expense. Montgomery County prosecutor Bruce Castor refused to allow testing, relying on what he claimed was an irrefutable confession (although if the confession were true, he had no need to fear the test). Finally, in November 2001, Godschalk obtained a ruling from a federal judge ordering DNA tests, which definitively<br />
exonerated him. The prosecutor's own laboratory and a lab hired by the defense concluded that both rapes were committed by the same person, who could not have been Bruce Godschalk. </p>
<p>At first, Castor persisted in opposing Godschalk's release, although he acknowledged having "no scientific basis" for doubting the test results. He simply assumed that "the tests must be flawed" because they contradicted the claims of the interrogating detective in the case. Finally, on February 14, after additional testing and some bad publicity, Castor grudgingly gave in: "I'm not convinced that Bruce Godschalk is<br />
innocent . . . but a tie goes to the defendant."</p>
<p>Given the new DNA evidence, Godschalk seemed bound to be set free eventually, partly because as the criminal-justice system begins to rely on DNA tests to convict people, it will have to accept DNA tests that exonerate people (one hopes). Opposition to testing is beginning to ease, and 22 states have passed laws providing convicted inmates with access to DNA tests under some circumstances. But inmates who may have been wrongly convicted still have no generally acknowledged right to obtain DNA testing, and the public has no acknowledged right to know when innocent people have been imprisoned or executed. In January 2002, the Fourth Circuit Court of Appeals held that convicts have no constitutional right to DNA testing; and in May 2001, a state court in Virginia denied a motion by a group of newspapers for DNA testing in the case of Roger Coleman, who was executed for murder in 1992, despite questions about his guilt.</p>
<p>This ruling in the Coleman case makes sense only if the goal of prosecutors and judges is to spare the state the embarrassment of exposing the execution of an innocent man and to suppress public knowledge of fatal flaws in the criminal-justice system. Imagine if hospitals openly refused to uncover and divulge readily obtainable information about the number of people who died as a result of botched procedures, about grossly negligent care, or about doctors and nurses who purposefully maim or murder their patients -- like prosecutors and police officers who knowingly convict the innocent. </p>
<p>The truth may hurt, but it's lies that are liable to kill us.</p>
</div></div></div>Thu, 07 Mar 2002 22:46:21 +0000142504 at http://prospect.orgWendy KaminerSectual Discriminationhttp://prospect.org/article/sectual-discrimination
<div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p><span class="dropcap">R</span>ebecca and David Corneau of Attleboro, Massachusetts, are Christian fundamentalists who belong to a small sect called The Body. Like Christian Scientists, they reject modern medical care in accordance with their religious beliefs. Unlike Christian Scientists, they are being deprived of all rights to raise a family. </p>
<p>In the fall of 1999 -- after their infant son allegedly died shortly after birth because he was denied medical care -- the Corneaus' three daughters were taken from their home and placed in the custody of relatives. The following fall, the then pregnant Rebecca was incarcerated and forced to give birth in custody; her baby girl was also taken by the state. The Corneaus, who claim that their infant son was stillborn, are currently engaged in a legal battle to regain custody of their children.</p>
<p>That battle escalated recently when Massachusetts officials "accused" Rebecca of giving birth to a sixth child. The Corneaus initially refused to confirm or deny this charge, which seems to have been based on changes in Rebecca's appearance and statements from neighbors who claim to have seen her leaving her home in labor. No one testified to the child's existence, and police did not find a baby during a search of the Corneaus' home. In January, however, a juvenile-court judge awarded the Department of Social Services temporary custody of the alleged newborn and ordered Rebecca Corneau jailed for contempt if she refused to bring the phantom child to court. On February 5, the Corneaus told the court that Rebecca had miscarried. Judge Kenneth P. Nasif imprisoned them both for contempt, observing that he could not confirm their claim without evidence of a fetus.</p>
<p>The prosecution of the Corneaus is zealous, but not entirely arbitrary. State officials have reason to fear for the welfare of children whose parents belong to The Body: Sect leader Jacques Robidoux and his wife Karen are being prosecuted for murder in the apparent starvation of their 10-month-old son Samuel in 1999. (He was allegedly fed<br />
only almond milk, in response to a vision from God.) The Corneaus' infant son was buried in secret with Samuel Robidoux, his cousin. The Department of Social Services gained custody of the Corneaus' three daughters after civil proceedings under a child-abuse-and-neglect statute. </p>
<p>Still, this case would generate outrage or, at least, considerably more controversy if the Corneaus were not identified as "cultists." No one has a religious right to harm a child. (Abraham would not have had a First Amendment defense for terrorizing Isaac.) But no one loses the right to raise children because of an association with a suspect religious group. The Commonwealth of Massachusetts is proceeding as if membership in The Body strips people of the right to parenthood. It has stopped just short of requiring the Corneaus to be sterilized.</p>
<p>Compare the Corneau case to the 1990 prosecution of another Massachusetts couple, Christian Scientists David and Ginger Twitchell. They were convicted of involuntary man-slaughter for failing to provide their two-year-old son, Robyn, with medical treatment that could have saved his life. Robyn suffered from peritonitis, but instead of calling a doctor, the Twitchells retained a Christian Science healer and prayed over their son until he died. They were apparently acting in good faith. </p>
<p>The prosecution of the Twitchells for homicide was quite controversial because the fatal neglect of their child was mandated by their religious beliefs. The Commonwealth's Supreme Judicial Court reversed the Twitchells' conviction in 1993 (ruling that their right to present a defense had been unduly restricted), but the SJC made clear that parents<br />
do not have a religious right to deny their children essential medical care. Still, state officials do not seek to prohibit Christian Scientists from bearing children or retaining<br />
custody of them, although a belief that illness should be treated with prayer, not medical intervention, is central to their faith.</p>
<p>Indeed, the Twitchells -- who were proved to have caused the death of their son, however inadvertently -- were treated with much greater leniency than the Corneaus were. After being convicted of manslaughter, they were not incarcerated; they did not lose custody of their surviving children and were not enjoined from having any more children. Instead, the Twitchells were placed on probation for 10 years and required to submit their other three children to periodic medical checkups and to seek medical care for any of them showing signs of serious illness. As far as I know, police have never searched the Twitchells' house (or the houses of other Christian Science couples) to determine whether or not they are harboring infants who may or may not exist and may or may not require medical care.</p>
<p>Americans who pride themselves on the religiosity of our country and its pluralistic tradition should consider the disparate treatment of the Corneaus and the Twitchells. If our respect for religious pluralism were genuine, members of established churches like Christian Science would not enjoy greater protection than do members of small sects, which are denigrated as "cults." All parents, of any or no religion, would be prohibited from denying their children medical care and could be prosecuted for homicide if any of their children died because of intentional medical neglect. But no parents would be presumed to be abusive, neglectful, or otherwise unfit and denied the right to raise their children because of their religious beliefs. </p>
<p>Rebecca Corneau is being treated like a criminal because she is suspected of having given birth. What can millions of women say but mea culpa?</p>
</div></div></div>Fri, 15 Feb 2002 20:56:57 +0000142470 at http://prospect.orgWendy KaminerHeavy Liftinghttp://prospect.org/article/heavy-lifting
<div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p><span class="dropcap">P</span>lagiarism charges against pop historian Stephen Ambrose are mounting; as I write this column, as many as six of his books have been found to include passages lifted from other writers without attribution. Scandals like this erupt periodically: Gail Sheehy ceded 10 percent of her royalties from the 1976 best-seller <i>Passages</i> to UCLA psychiatrist Roger Gould, who sued her for copyright infringement. (She also borrowed liberally from the work of the late Yale psychologist Daniel Levinson.) Joe McGinnis was exposed as a plagiarist when his 1993 biography of Edward Kennedy was found to include passages from books by William Manchester and Doris Kearns Goodwin. But Goodwin, who was rather unforgiving of McGinnis, had previously committed a similar offense (as <i>The Weekly Standard</i> recently revealed): She took passages from Lynne McTaggart's 1983 book about Kathleen Kennedy for her 1987 book <i>The Fitzgeralds and the Kennedys</i> -- the same book she accused McGinnis of appropriating. Literary copycats include genuine moral exemplars as well as amateurs and hacks: Martin Luther King's doctoral dissertation was not exactly original.</p>
<p>
But originality is not much valued in our consumer culture, which is fueled by the urge to conform. Social trends reflect, in part, the impulse to look, act, or think alike;<br />
your status, or fame, reflects your success in acquiring what everyone else wants to acquire or being what everyone else wants to be. (Britney Spears is a star partly because there's nothing unfamiliar about her.) Media moguls profit from our attraction to the familiar. In any given year, there are fashions in sit-coms, movies, music, and self-help books, just as there are in politics, not to mention clothes. </p>
<p>
<span class="dropcap">O</span>f course, creativity can prosper in this culture, thanks partly to copyright laws that protect against the most blatant acts of plagiarism and give creators some right to control and profit from their work. (You can't copyright an idea; you can copyright the words or images you use to express it.) But what protects creators more than law is recognition in the marketplace. Plagiarists hardly claim credit for work that is publicly identified with someone else. The difference between ripping off an obscure writer and ripping off a famous one is the difference between plagiarism and homage.</p>
<p>Ambrose seems clearly guilty of the former, but while charges of plagiarism are embarrassing, for popular writers they're not devastating professionally. (In the academy, they do more harm.) It's clear that Ambrose expects to get away with it. When a <i>Weekly Standard</i> cover story revealed that his current best-seller <i>The Wild Blue</i> appropriated paragraphs from Thomas Childers's book <i>The Wings of Morning</i>, Ambrose promptly apologized -- sort of: He acknowledged that the work for which he had taken credit was, in part, created by Childers. But he characterized his apparent plagiarism as an innocent mistake -- an oversight, hardly more grievous than a typo. "I wish I had put quotation marks in but I didn't," he explained.</p>
<p>Ambrose's publisher is standing by its moneymaking "author," expressing impatience with people who question his integrity. Simon and Schuster publisher David Rosenthal denied that Ambrose's borrowing constitutes plagiarism: "There is no effort to deceive," he told <i>The New York Times</i>. "The material has been appropriately footnoted,<br />
and if there have been omissions it appears to be in the methods of citing as opposed to the citation itself," he added unintelligibly. Rosenthal is equally protective of Goodwin, another Simon and Schuster moneymaker, who has denied being a plagiarist. Her borrowings were "inadvertent," he said; ". . . some papers got shuffled."</p>
<p>
<span class="dropcap">A</span>mbrose offered his own incoherent defense of his work: "I am not out there stealing other people's writings," he said, ignoring all the evidence. "If I am writing up a passage and it is a story I want to tell and this story fits and a part of it is from other people's writings, I just type it up that way and put it in a footnote." Or, as his defenders explain, Ambrose churns out a lot of books; he can't be expected to keep track of all his borrowings. Some quotation marks are bound to be omitted. But this defense of Ambrose simply underscores his underlying offense: He doesn't author books, it seems, so much as he assembles them, relying on an army of researchers and other, less prominent historians. Given the number of books he's produced and the number of unknown works available to plagiarists, we may never know the extent of his borrowings.</p>
<p>"So what," fans of Ambrose will probably say. Some may remember copying grade-school reports from <i>The World Book Encyclopedia</i> years ago (as I did). Some will think that I'm nitpicking. They simply won't see the harm in appropriating the words of other writers. Politicians do it all the time; indeed, presidents become famous for the eloquence of their speechwriters. Writers should be flattered when someone borrows their words, people say. </p>
<p>I doubt, however, that workers in the corporate world are flattered when colleagues profit from stealing their ideas or their résumés. Ambrose appears to have built a $3-million-a-year career partly on the toils of other historians. Why does the money matter morally? It measures the number of books he's sold and the number of times he's passed<br />
himself off as another. Writing, after all, is self-expression (for people who think and write with some originality). Plagiarism is a kind of identity theft.</p>
</div></div></div>Thu, 31 Jan 2002 22:34:32 +0000142450 at http://prospect.orgWendy KaminerFreedom's Edgehttp://prospect.org/article/freedoms-edge
<div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p><span class="dropcap">I</span>n San Francisco, two militant advocates for AIDS<br />
patients have been charged with stalking and threatening public-health officials,<br />
researchers, and reporters who have made or disseminated what they deem to be<br />
objectionable statements about AIDS prevention and the behavior of infected gay<br />
men. Naturally, with no apparent sense of irony, they assert a First Amendment<br />
defense. </p>
<p>
The suspects, David Pasquarelli and Michael Petrelis, have been held<br />
for over a month, each on $500,000 bail. They admit that they made or encouraged<br />
"foul" late-night phone calls to the homes of officials who work at the federal<br />
Centers for Disease Control in Atlanta and others they consider the "enemies of<br />
gay people." (The phone calls began in November, after San Francisco initiated a<br />
syphilis-awareness campaign inspired by an increase in the disease among gay and<br />
bisexual men.) But Pasquarelli and Petrelis deny making the threats of violence<br />
that their targets report receiving. </p>
<p>
"They told me they were going to hunt me down, that I was in their sights,"<br />
Carl T. Hall, a science writer for the San Francisco Chronicle, alleges. Dr.<br />
Jeffrey Klausner, otherwise known on the Net as Dr. K-K-K-Klausner because of his<br />
references to quarantining sexually active infected gay men, claims that he and<br />
his family received threatening, obscene calls at home.</p>
<p>
Of course, Petrelis and Pasquarelli have an obvious right to offend, unsettle,<br />
or denounce their ideological opponents--and a concomitant obligation to tolerate<br />
being offended, unsettled, or denounced. But they have no right to target people<br />
purposefully with plausible threats of violence, which hardly advance or<br />
encourage public debate. Their prosecution does not present a difficult legal<br />
issue so much as a controlling question of fact: Did they or did they not<br />
intentionally threaten people?</p>
<p>
The Ninth Circuit Court of Appeals, which could eventually hear this case if<br />
it winds up in federal court, has been grappling with a very similar one for the<br />
past two years. In Planned Parenthood v. American Coalition of Life Activists,<br />
the Ninth Circuit overturned a verdict by a federal jury that hit the ACLA, a<br />
group of anti-abortion extremists, with a $100-million damage award for<br />
threatening abortion providers. In addition to circulating wanted posters that<br />
featured doctors who performed abortions, the appellants had contributed<br />
information about doctors and clinic workers to the notorious Nuremberg Files<br />
site on the Internet. That site maintained a hit list of more than 200 abortion<br />
providers, together with photographs and dossiers listing personal identifying<br />
information, such as full names, addresses, license plate numbers, and details<br />
about the subjects' spouses and children. After three doctors on the list were<br />
slain, a line was put through their names; the names of the wounded were listed<br />
in gray. </p>
<p>
In overturning this verdict, Judge Alex Kozinski likened the alleged threats<br />
against abortion providers to the protected rhetoric of civil-rights activists<br />
that was at issue in a landmark 1982 Supreme Court case, NAACP v. Claiborne<br />
Hardware. It involved a boycott against white-owned businesses in Mississippi;<br />
one organizer, Charles Evers, was said to have threatened retaliation against<br />
people who broke the boycott: "If we catch any of you going in any of them racist<br />
stores, we're gonna break your damn neck," he exclaimed. But the Court held that<br />
these remarks were protected speech--because Evers had not "directly threatened<br />
acts of violence." (He was making a speech to a crowd, not stalking or otherwise<br />
targeting particular individuals.) Evers was guilty of rhetorical excesses, not<br />
the issuance of intentional, plausible threats. The Court also stressed that he<br />
could not be held to have intentionally incited violence.</p>
<p>
Claiborne Hardware was rightly decided, but it is the wrong precedent for the<br />
Nuremberg Files case. Abortion activists were not sued for inciting violence but<br />
for threatening it--against targeted individuals. And context is essential in<br />
determining whether or not a rhetorical flourish is an actual threat.<br />
Anti-abortion activists issued wanted posters and hit lists during a wave of<br />
homicidal violence against clinics and clinic workers. The threats were quite<br />
plausible (people had been killed), the FBI was offering protection to targeted<br />
doctors, and one defendant, Andrew Burnett, even admitted that the threats were<br />
real: "If I was an abortionist, I would be afraid," he testified.</p>
<p>
<span class="dropcap">T</span>he ninth circuit's reversal of this verdict inspired a<br />
predictable outburst of protests among pro-choicers (and debates among<br />
free-speech advocates). The full court reheard the case last month, and the<br />
timing was not propitious for anti-abortion extremists. Fear of terrorism is much<br />
stronger these days than respect for speech. The verdict against the ACLA ought<br />
to be restored--not in reaction to September 11, and not to stop violence against<br />
abortion providers, but to punish and perhaps deter deliberate efforts to<br />
terrorize people. </p>
<p>
If the Ninth Circuit does hold the ACLA liable for issuing actual<br />
threats, it will not be starting down the slippery slope of censorship.<br />
Reinstating the verdict against the ACLA won't deter offensive or unpopular<br />
political speech, endanger war movies and video games that glorify violence, or<br />
restrict other controversial media. The usual debates about the causal<br />
connection between disputed speech and harmful behavior are irrelevant here.<br />
Neither the Nuremberg Files case nor the prosecution of AIDS activists in San<br />
Francisco is based on claims that speech causes violence. The defendants in both<br />
cases are charged not with causing physical harm to people but with intentionally<br />
instilling fear in them. For freedom's sake, we all have to tolerate being<br />
vilified, embarrassed, or harassed, but freedom will survive if we acknowledge a<br />
right not to be terrorized.</p>
</div></div></div>Fri, 18 Jan 2002 20:43:38 +0000142439 at http://prospect.orgWendy Kaminer